Albemarle Corp S-4, filed Jun 10, 2020
Albemarle Corp (ALB)
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As filed with the Securities and Exchange Commission on June 10, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Albemarle Corporation
(Exact name of registrant as specified in its charter)
| Virginia | 2821 | 54-1692118 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
4250 Congress Street, Suite 900
Charlotte, North Carolina 28209
(980) 299-5700
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Albemarle Wodgina Pty Ltd
ACN 630 509 303
(Exact name of registrant as specified in its charter)
| Australia | 2821 | Not Applicable | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
Level 3, 25 National Circuit
Forrest, ACT 2603, Australia
+61 2 6225 3000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Karen G. Narwold, Esq.
Executive Vice President, Chief Administrative
Officer, Corporate Secretary and General Counsel
4250 Congress Street, Suite 900
Charlotte, North Carolina 28209
(980) 299-5700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With copies to:
Lisa L. Jacobs
Shearman & Sterling LLP
599 Lexington Avenue
New York, N.Y. 10022
(212) 848-4000
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company”, and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
| Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
☐ | |||
| Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
☐ |
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
Amount to be Registered |
Proposed Maximum Offering Price per Note(1) |
Proposed Maximum Offering Price(1) |
Amount of Registration Fee(2) | ||||
| Floating Rate Notes due 2022 |
$200,000,000 | 100.000% | $200,000,000 | $25,960 | ||||
| 3.450% Senior Notes due 2029 |
$300,000,000 | 100.000% | $300,000,000 | $38,940 | ||||
| Guarantees of 3.450% Senior Notes due 2029(3) |
N/A | N/A | N/A | None(4) | ||||
| Total |
$500,000,000 | N/A | $500,000,000 | $64,900 | ||||
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| (1) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(f) under the Securities Act of 1933, as amended. |
| (2) | Calculated in accordance with Rule 457(f) under the Securities Act. |
| (3) | Albemarle Corporation will guarantee the 2029 Exchange Notes being registered. |
| (4) | Pursuant to Rule 457(n) under the Securities Act, no separate filing fee is required for the guarantees. |
The registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not exchange these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale thereof is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 10, 2020
PROSPECTUS
Offers to Exchange
$200,000,000 Outstanding Floating Rate Notes due 2022
for Registered Floating Rate Notes due 2022
and
$300,000,000 Outstanding 3.450% Senior Notes due 2029
for Registered 3.450% Senior Notes due 2029
Albemarle Corporation (“Albemarle”) is offering to exchange, upon the terms and subject to the conditions set forth in this prospectus and the accompanying letter of transmittal, all of its outstanding unregistered Floating Rate Notes due 2022 (the “2022 Restricted Notes”) for an equivalent principal amount of our registered Floating Rate Notes due 2022 (the “2022 Exchange Notes”), and Albemarle Wodgina Pty Ltd, a wholly owned subsidiary of Albemarle (“Wodgina”), is offering to exchange, upon the terms and subject to the conditions set forth in this prospectus and the accompanying letter of transmittal, all of its outstanding unregistered 3.450% Senior Notes due 2029 (the “2029 Restricted Notes”) for an equivalent principal amount of its registered 3.450% Senior Notes due 2029 (the “2029 Exchange Notes”), such offers referred to herein, collectively, as the “exchange offers.” The 2022 Restricted Notes and the 2029 Restricted Notes are collectively referred to as the “Restricted Notes”; the 2022 Exchange Notes and the 2029 Exchange Notes are collectively referred to as the “Exchange Notes”; the 2022 Restricted Notes and the 2022 Exchange Notes are collectively referred to as the “2022 Notes”; and the 2029 Restricted Notes and the 2029 Exchange Notes are collectively referred to as the “2029 Notes”. Wodgina’s obligations under the 2029 Restricted Notes are fully and unconditionally guaranteed on a senior unsecured basis (the “2029 Restricted Notes Guarantee”) by Albemarle, and the 2029 Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the “2029 Exchange Notes Guarantee” and, together with the 2029 Restricted Notes Guarantee, the “2029 Notes Guarantees”) by Albemarle.
The 2022 Exchange Notes and the 2029 Exchange Notes Guarantee will be Albemarle’s senior unsecured obligations and will rank equally with all of Albemarle’s other existing and future senior indebtedness. The 2029 Exchange Notes will be Wodgina’s senior unsecured obligations and will rank equally with all of Wodgina’s other existing and future senior indebtedness. See “Description of the Exchange Notes”. All references to the 2029 Exchange Notes and 2029 Restricted Notes include references to the related guarantees, as appropriate. See “Description of the Exchange Notes—2029 Exchange Notes Guarantee”.
The exchange offers are subject to customary closing conditions and will expire at 11:59 p.m., New York City time, on , 2020 (the “Expiration Date”), unless extended.
Albemarle and Wodgina issued the Restricted Notes in transactions not requiring registration under the Securities Act of 1933, as amended (the “Securities Act”) and, as a result, their transfer is restricted. Albemarle and Wodgina are making the exchange offers to satisfy your registration rights as a holder of the Restricted Notes and will not receive any proceeds from the exchange offers. The terms of the Exchange Notes are identical in all material respects to the Restricted Notes of the same series, except that the Exchange Notes are registered under the Securities Act and will not contain restrictions on transfer or provisions relating to additional interest, will bear a different CUSIP number from the Restricted Notes of the same series and will not entitle their holders to registration rights. The Exchange Notes, together with any Restricted Notes that are not exchanged in the exchange offer, will be governed by the same indenture, constitute the same class of debt securities for the purposes of such indenture and vote together on all matters.
Each holder of Restricted Notes wishing to accept Exchange Notes in the exchange offers must deliver the Restricted Notes to be exchanged, together with the letter of transmittal that accompanies this prospectus and any other required documentation, to the exchange agent identified in this prospectus. Alternatively, you may effect a tender of Restricted Notes by book-entry transfer into the exchange agent’s account at The Depository Trust Company (“DTC”). All deliveries are at the risk of the holder. You can find detailed instructions concerning delivery in the section called “The Exchange Offers” in this prospectus and in the accompanying letter of transmittal.
Each broker-dealer that receives the Exchange Notes for its own account pursuant to the exchange offers must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes. The letter of transmittal accompanying this prospectus states that, by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of the Exchange Notes received in exchange for the Restricted Notes where such Restricted Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. See “Plan of Distribution.” The Exchange Notes will not be listed on any securities exchange or for quotation through any automated dealer quotation system.
See “Risk Factors” beginning on page 9 for a discussion of risk factors that you should carefully consider before deciding to exchange your Restricted Notes for Exchange Notes.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2020
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It is important that you read and consider all of the information contained in this prospectus in making your investment decision. You should also read and consider the information in the documents to which we have referred you in “Incorporation by Reference” and “Where You Can Find More Information.”
As used in this prospectus, unless otherwise indicated or the context otherwise requires the terms (i) “the Company,” “Albemarle,” “we,” “us” and “our” refer to Albemarle Corporation, a Virginia corporation, which is the issuer of the 2022 Exchange Notes and the guarantor of the 2029 Notes, (ii) “Wodgina” refers to Albemarle Wodgina Pty Ltd (ACN 630 509 303), a proprietary limited company incorporated under the laws of Australia and a wholly owned subsidiary of Albemarle, which is the issuer of the 2029 Exchange Notes, (iii) “the issuers” refers to Albemarle and Wodgina, as issuers of the Restricted Notes and the Exchange Notes, (iv) “issuer” refers to Albemarle when used with respect to the 2022 Exchange Notes and Wodgina when used with respect to the 2029 Exchange Notes, (v) “guarantor” refers to Albemarle when used with respect to the 2029 Notes Guarantees and (vi) “initial purchasers” refers to J.P. Morgan Securities LLC and BofA Securities, Inc.
The issuers are incorporating by reference into this prospectus certain information that Albemarle has filed with the SEC, which means that we are disclosing important information to you by referring you to other documents. This prospectus incorporates by reference the documents listed below and any future filings made by Albemarle with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on or after the date of this prospectus and prior to termination of this offering.
The following documents, which have been filed with the SEC by Albemarle, are hereby incorporated by reference into this prospectus:
| • | Annual Report on Form 10-K for the fiscal year ended December 31, 2019 filed on February 26, 2020; |
| • | Amendment to Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019 filed on April 15, 2020; |
| • | Quarterly Report on Form 10-Q for the quarter ended March 30, 2020 filed on May 11 2020; and |
| • | Current Reports on Form 8-K filed on February 6, 2020, March 4, 2020, April 20, 2020, and May 8, 2020. |
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Nothing in this prospectus shall be deemed to incorporate information furnished to, but not filed with, the SEC, including information pursuant to Item 2.02 or Item 7.01 of Form 8-K and corresponding information furnished under Item 9.01 of Form 8-K or included as an exhibit. Any statement contained in a document incorporated or deemed to be incorporated herein by reference, or contained in this prospectus, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any other subsequently dated or filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
The information incorporated by reference is an important part of this prospectus. The issuers have not authorized anyone to provide you with information other than that contained in, or incorporated by reference into, this prospectus. You should not assume that the information in this prospectus is accurate as of any date other than the date of this prospectus. This prospectus contains summaries of certain agreements that the issuers have entered into or expect to enter into in connection with this offering. The descriptions of these agreements contained in this prospectus do not purport to be complete and are subject to, or qualified in their entirety by reference to, the definitive agreements. Copies of the definitive agreements will be made available without charge to you by making a written request to us at the following address: Albemarle Corporation, 4250 Congress Street, Suite 900, Charlotte, North Carolina 28209. Our telephone number is (980) 299-5700.
You can obtain any of the documents incorporated by reference in this document from the SEC’s website at the address described below. You may also request a copy of these filings, at no cost, by writing or telephoning at the address and telephone number set forth in the paragraph immediately above. We will provide, without charge, upon written or oral request, a copy of any or all of the documents that are incorporated by reference into this prospectus, excluding any exhibits to those documents unless the exhibit is specifically incorporated by reference as an exhibit in this prospectus. You should direct requests for documents to the address or telephone number set forth in the paragraph immediately above.
WHERE YOU CAN FIND MORE INFORMATION
Albemarle files annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website through which you may access the information Albemarle files electronically with the SEC at http://www.sec.gov.
You may also access Albemarle’s SEC filings under the heading “Investors” on Albemarle’s website at http://www.albemarle.com. The information contained on or linked to or from Albemarle’s website is not incorporated by reference into this prospectus and is not a part of this prospectus.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Some of the information presented in this prospectus, including the documents incorporated by reference, may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements are based on our current expectations, which are in turn based on assumptions that we believe are reasonable based on our current knowledge of our business and operations. We have used words such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “should,” “would,” “will” and variations of such words and similar expressions to identify such forward-looking statements.
These forward-looking statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions, which are difficult to predict and many of which are beyond our control. There can be no assurance that our actual results will not differ materially from the results and expectations expressed or implied in the forward-looking statements. Factors that could cause actual results to differ materially from the outlook expressed or implied in any forward-looking statement include, without limitation, information related to:
| • | changes in economic and business conditions; |
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| • | changes in financial and operating performance of our major customers and industries and markets served by us; |
| • | the timing of orders received from customers; |
| • | the gain or loss of significant customers; |
| • | competition from other manufacturers; |
| • | changes in the demand for our products or the end-user markets in which our products are sold; |
| • | limitations or prohibitions on the manufacture and sale of our products; |
| • | availability of raw materials; |
| • | increases in the cost of raw materials and energy, and our ability to pass through such increases to our customers; |
| • | changes in our markets in general; |
| • | fluctuations in foreign currencies; |
| • | changes in laws and government regulation impacting our operations or our products; |
| • | the occurrence of regulatory actions, proceedings, claims or litigation; |
| • | the occurrence of cyber-security breaches, terrorist attacks, industrial accidents, natural disasters or climate change; |
| • | hazards associated with chemicals manufacturing; |
| • | the inability to maintain current levels of product or premises liability insurance or the denial of such coverage; |
| • | political unrest affecting the global economy, including adverse effects from terrorism or hostilities; |
| • | political instability affecting our manufacturing operations or joint ventures; |
| • | changes in accounting standards; |
| • | the inability to achieve results from our global manufacturing cost reduction initiatives as well as our ongoing continuous improvement and rationalization programs; |
| • | changes in the jurisdictional mix of our earnings and changes in tax laws and rates; |
| • | changes in monetary policies, inflation or interest rates that may impact our ability to raise capital or increase our cost of funds, impact the performance of our pension fund investments and increase our pension expense and funding obligations; |
| • | volatility and uncertainties in the debt and equity markets; |
| • | technology or intellectual property infringement, including through cyber-security breaches, and other innovation risks; |
| • | decisions we may make in the future; |
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| • | the ability to successfully execute, operate and integrate acquisitions and divestitures; |
| • | uncertainties as to the duration and impact of the novel coronavirus (“COVID-19”) pandemic; and |
| • | the other factors detailed from time to time in the reports Albemarle files with the Securities and Exchange Commission (“SEC”). |
The issuers assume no obligation to provide revisions to any forward-looking statements should circumstances change, except as otherwise required by securities and other applicable laws. This prospectus should be read together with Albemarle’s consolidated financial statements and related notes included herein.
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The following summary is qualified in its entirety by, and should be read in conjunction with, the more detailed information and financial statements (including the notes thereto) appearing elsewhere or incorporated by reference in this prospectus. Because this is a summary it may not contain all the information that may be important to you. You should read the entire prospectus and the information incorporated by reference, before making an investment decision. Some of the statements in this “Summary” are forward-looking statements. Please see “Cautionary Statement Regarding Forward-Looking Statements” for more information regarding these statements.
Our Business
We are a leading global developer, manufacturer and marketer of highly-engineered specialty chemicals that are designed to meet our customers’ needs across a diverse range of end markets. The end markets we serve include energy storage, petroleum refining, consumer electronics, construction, automotive, lubricants, pharmaceuticals, crop protection and custom chemistry services. We believe that our commercial and geographic diversity, technical expertise, innovative capability, flexible, low-cost global manufacturing base, experienced management team and strategic focus on our core base technologies will enable us to maintain leading market positions in those areas of the specialty chemicals industry in which we operate. For a description of our business, financial condition, results of operations and other important information regarding us, we refer you to our filings with the SEC incorporated by reference in this prospectus. For instructions on how to find copies of these documents, see “Where You Can Find More Information.”
Albemarle Corporation was incorporated in Virginia in 1993. Albemarle’s principal executive offices are located at 4250 Congress Street, Suite 900, Charlotte, North Carolina 28209. Albemarle’s website is www.albemarle.com.The information contained on or accessible through our website neither constitutes part of this prospectus supplement nor is incorporated by reference herein.
Wodgina
Wodgina owns a 60% interest in the Wodgina hard rock lithium mining project in Western Australia (the “Wodgina Project”), which comprises mining tenements (including all mineral rights within those tenements, other than rights to iron ore and tantalum) and all of the other material physical infrastructure required for the operation of the mining project (other than the crusher, which is owned and operated by Crushing Services International Pty Ltd, a wholly owned subsidiary of Mineral Resources Limited and related corporation of WLPL (described below)), and a 60% interest in two 25 kilotons per annum (ktpa) lithium hydroxide conversion units and related infrastructure being built by Albemarle in Kemerton, Western Australia (the “Kemerton Plant”). The remaining 40% interest in the Wodgina Project and 40% interest in the Kemerton Plant are owned by Wodgina Lithium Pty Ltd (“WLPL”), a wholly owned subsidiary of Mineral Resources Limited. Wodgina and WLPL hold their respective interests in the Wodgina Project and the Kemerton Plant through an unincorporated joint venture known as the MARBL Lithium Joint Venture (the “Joint Venture”). The Joint Venture is managed by MARBL Lithium Operations Pty Ltd (the “Manager”), which is owned 60% by Wodgina and 40% by WLPL.
Wodgina was incorporated in Western Australia in 2018. Wodgina’s registered offices are located at Level 3, 25 National Circuit, Forrest, ACT 2603, Australia.
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The Exchange Offers
On November 25, 2019, the issuers completed a private offering of the Restricted Notes. Concurrently with the private offering, the issuers entered into a registration rights agreement (the “Registration Rights Agreement”) pursuant to which the issuers agreed, among other things, to file the registration statement of which this prospectus is a part. The following is a summary of the exchange offers. For more information please see “The Exchange Offers.”
| The Exchange Offers | Albemarle is offering to exchange up to $200,000,000 aggregate principal amount of the 2022 Exchange Notes which have been registered under the Securities Act for any and all of the outstanding $200,000,000 aggregate principal amount of 2022 Restricted Notes.
Wodgina is offering to exchange up to $300,000,000 aggregate principal amount of the 2029 Exchange Notes which have been registered under the Securities Act for any and all of the outstanding $300,000,000 aggregate principal amount of 2029 Restricted Notes.
Restricted Notes may be exchanged only in minimum denominations of $2,000 and integral multiples of $1,000 thereafter. Exchange Notes will be issued only in minimum denominations of $2,000 and integral multiples of $1,000 thereafter. | |
| CUSIP | The CUSIP numbers for the 2022 Restricted Notes are 012653 AB7 (Rule 144A) and U01221 AB3 (Regulation S). The CUSIP number for the 2022 Exchange Notes is 012653 AC5.
The CUSIP numbers for the 2029 Restricted Notes are 01273P AA0 (Rule 144A) and Q0171Y AA8 (Regulation S). The CUSIP number for the 2029 Exchange Notes is 01273P AB8. | |
| Expiration Dates | The exchange offers will expire at 11:59 p.m., New York City time, on , 2020, unless extended by the issuers. See “The Exchange Offers—Expiration Date; Extensions, Amendments.” | |
| Conditions to the Exchange Offers | Despite any other term of the exchange offers, the Company and Wodgina will not be required to accept for exchange, or to issue Exchange Notes in exchange for, any outstanding Restricted Notes and it may terminate or amend the exchange offers as provided in this prospectus prior to the Expiration Date if in its reasonable judgment:
• the exchange offers or the making of any exchange by a holder violates any applicable law or interpretation of the SEC;
• any action or proceeding has been instituted or threatened in writing in any court or by or before any governmental agency with respect to the exchange offers that, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offers; or
• any law, rule or regulation or applicable interpretations of the staff of the SEC have been issued or promulgated, which, in our good faith determination, does not permit the issuers to effect either of the exchange offers. | |
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| The issuers expressly reserves the right to amend or terminate the exchange offers and to reject for exchange any outstanding Restricted Notes not previously accepted for exchange, upon the occurrence of any of the conditions to the exchange offers specified above. The issuers will give oral or written notice of any extension, amendment, non-acceptance or termination of the exchange offers to the holders of the outstanding Restricted Notes as promptly as practicable.
These conditions are for the sole benefit of the issuers, and the issuers may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times prior to the Expiration Date in the sole discretion of the issuers. | ||
| Resale of the Exchange Notes | Based on interpretations by the SEC set forth in no-action letters issued to third parties, the issuers believe that you may resell or otherwise transfer Exchange Notes issued in the exchange offers without complying with the registration and prospectus delivery provisions of the Securities Act, if:
• you are not our affiliate within the meaning of Rule 405 of the Securities Act;
• you are not participating, and you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act;
• if you are a broker-dealer, you have not entered into any arrangement or understanding with the issuers or any of our affiliates to distribute the Exchange Notes; and
• you are acquiring the Exchange Notes in the ordinary course of your business.
If you are our affiliate, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the Exchange Notes, or are not acquiring the Exchange Notes in the ordinary course of your business:
You cannot rely on the position of the SEC set forth in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling, dated July 2, 1993, and similar no-action letters; and in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction of the Exchange Notes, in which case the registration statement must contain the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the SEC.
This prospectus may be used for an offer to resell, resale or other transfer of Exchange Notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the outstanding Restricted Notes as a result of market-making activities or other trading activities may participate in the | |
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| exchange offers. Each broker-dealer that receives Exchange Notes for its own account in exchange for outstanding Restricted Notes, where such outstanding Restricted Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the Exchange Notes. Please read “Plan of Distribution” for more details regarding the transfer of Exchange Notes. | ||
| Procedures for Tendering Restricted Notes | If you wish to participate in the exchange offers, sign and date the letter of transmittal that was delivered with this prospectus in accordance with the instructions, and deliver the letter of transmittal, along with the Restricted Notes and any other required documentation, to the exchange agent. Alternatively, you can tender your outstanding Restricted Notes by following the procedures for book-entry transfer, as described in this prospectus. See “The Exchange Offers—Procedures for Tendering Restricted Notes.” By executing the letter of transmittal or by transmitting an agent’s message (as defined below) in lieu thereof, you will represent to the issuers that, among other things:
• the Exchange Notes you receive will be acquired in the ordinary course of your business;
• you are not participating, and you have no arrangement with any person or entity to participate, in the distribution of the Exchange Notes;
• you are not an “affiliate” (as defined in Rule 405 under the Securities Act) of ours, or, if you are such an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable;
• if you are a broker-dealer, you have not entered into any arrangement or understanding with the issuers or any of our “affiliates” to distribute the Exchange Notes; and
• you are not acting on behalf of any person or entity that could not truthfully make these representations.
If the exchange offeree is a broker-dealer holding Restricted Notes acquired for its own account as a result of market-making activities or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Notes received in respect of such Restricted Notes pursuant to the exchange offers. See “Plan of Distribution.” | |
| Special Procedures for Beneficial Owners |
If you are a beneficial owner whose Restricted Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and wish to tender such Restricted Notes in the exchange offers, please contact the registered holder as soon as possible and instruct them to tender on your behalf and comply with our instructions set forth elsewhere in this prospectus. See “The Exchange Offers—Procedures for Tendering Restricted Notes.” | |
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| Withdrawal Rights | Except as otherwise provided in this prospectus, you may withdraw your tender of Restricted Notes at any time prior to the Expiration Date. | |
| Effect on Holders of Restricted Notes | As a result of the making of, and upon acceptance for exchange of all validly tendered outstanding Restricted Notes pursuant to the terms of, the exchange offers, the issuers will have fulfilled its obligation to consummate exchange offers for the Restricted Notes under the Registration Rights Agreement. If you do not tender your Restricted Notes in the exchange offers, you will continue to be entitled to all the rights and limitations applicable to the outstanding Restricted Notes as set forth in the indenture governing the Restricted Notes, except the issuers will not have any further obligation to you to provide for the exchange and registration of untendered outstanding Restricted Notes under the Registration Rights Agreement. As a result of the transfer restrictions and the availability of Exchange Notes, the market for the Restricted Notes is likely to be much less liquid after these exchange offers are completed. | |
| Consequences of Failure to Exchange | All untendered outstanding Restricted Notes will continue to be subject to the restrictions on transfer set forth in the outstanding Restricted Notes and in the related indenture. In general, the outstanding Restricted Notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. Other than in connection with the exchange offers, the issuers does not currently anticipate that it will register the outstanding Restricted Notes under the Securities Act. | |
| Broker-Dealers | Each broker-dealer that receives Exchange Notes for its own account in exchange for Restricted Notes, where such Restricted Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. See “Plan of Distribution.” | |
| Material Income Tax Consequences | The exchange of Outstanding Notes for Exchange Notes in the exchange offers will not constitute a taxable event to holders for United States federal income tax purposes or a taxable gain for Australian income tax purposes. See “Material Income Tax Consequences.” | |
| Use of Proceeds | Albemarle and Wodgina will not receive any cash proceeds from the issuance of the Exchange Notes in the exchange offers. See “Use of Proceeds.” | |
| Exchange Agent and Information Agent | U.S. Bank National Association is serving as exchange agent in connection with the exchange offers. Its address, telephone number and facsimile number are listed in “The Exchange Offers—Exchange Agent.” | |
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The Exchange Notes
The summary below describes the principal terms of the Exchange Notes. Certain of the terms and conditions described below are subject to important limitations and exceptions. The “Description of the Exchange Notes” section of this prospectus contains more detailed descriptions of the terms and conditions of the respective series of Exchange Notes.
The Exchange Notes are substantially identical in all material respects to the Restricted Notes, except that the Exchange Notes have been registered under the Securities Act and will not have any of the transfer restrictions, registration rights and additional interest provisions relating to the Restricted Notes. The Exchange Notes will evidence the same debt as the Restricted Notes and be entitled to the benefits of the indenture.
| Issuers | Albemarle Corporation, with respect to the 2022 Exchange Notes. Albemarle Wodgina Pty Ltd, with respect to the 2029 Exchange Notes. | |
| 2022 Exchange Notes Offered | Up to $200,000,000 aggregate principal amount of 2022 Exchange Notes in exchange for an identical principal amount of the 2022 Restricted Notes. | |
| 2029 Exchange Notes Offered | Up to $300,000,000 aggregate principal amount of 2029 Exchange Notes in exchange for an identical principal amount of the 2029 Restricted Notes. | |
| Maturity | The 2022 Exchange Notes will mature on November 15, 2022, and the 2029 Exchange Notes will mature on November 15, 2029, unless redeemed earlier as described in “Description of the Exchange Notes— Optional Redemption.” | |
| Interest | The 2022 Exchange Notes will bear interest at a rate per annum equal to three-month LIBOR as determined on February 15, May 15, August 15 and November 15 of each year, plus 1.05% (105 basis points) on the principal amount thereof. The 2029 Exchange Notes will bear interest at the rate of 3.450% per year on the principal amount thereof. | |
| Interest Payment Dates | The 2022 Exchange Notes will be payable quarterly on February 15, May 15, August 15 and November 15 of each year. Interest on the 2022 Exchange Notes will accrue from the most recent date to which interest has been paid or provided for on the 2022 Restricted Notes.
The 2029 Exchange Notes will be payable semi-annually on May 15 and November 15 of each year. Interest on the 2029 Exchange Notes will accrue from the most recent date to which interest has been paid or provided for on the 2029 Restricted Notes. | |
| Guarantees | The 2022 Exchange Notes are not guaranteed.
The 2029 Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis by Albemarle. See “Description of the Exchange Notes—2029 Exchange Notes Guarantee.” | |
| Ranking | The 2022 Exchange Notes will be Albemarle’s senior unsecured obligations and will rank equally in right of payment to the senior indebtedness of Albemarle, including the 2029 Exchange Note Guarantee, effectively subordinated to all of the secured indebtedness of Albemarle, to the extent of the value of the assets securing that indebtedness, and structurally subordinated to all indebtedness and other liabilities of its subsidiaries, including the 2029 Exchange Notes. | |
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|
The 2029 Exchange Notes will be Wodgina’s senior unsecured obligations and will rank equally in right of payment to the senior indebtedness of Wodgina, effectively subordinated to all of the secured indebtedness of Wodgina, to the extent of the value of the assets securing that indebtedness, and structurally subordinated to all indebtedness and other liabilities of its subsidiaries.
The 2029 Exchange Note guarantee will be Albemarle’s senior unsecured obligation and will rank equally in right of payment to the senior indebtedness of the guarantor, including the 2022 Exchange Notes, effectively subordinated to all of the secured indebtedness of the guarantor, to the extent of the value of the assets securing that indebtedness, and structurally subordinated to all indebtedness and other liabilities of its subsidiaries, including the 2029 Exchange Notes.
See “Description of the Exchange Notes—Ranking.” | ||
| Optional Redemption | At any time, or from time to time, on or after November 15, 2020 (two years prior to the maturity date), the 2022 Exchange Notes may be redeemed as a whole or in part at a redemption price equal to 100% of the principal amount of the Exchange Notes to be redeemed plus accrued and unpaid interest on the Exchange Notes to be redeemed to, but excluding, the date of redemption. Prior to November 15, 2020 (two years prior to the maturity date), the 2022 Exchange Notes will not be subject to redemption at Albemarle’s option.
At any time, or from time to time, prior to August 15, 2029 (three months prior to the maturity date), Wodgina may redeem the 2029 Exchange Notes in whole or in part, at the applicable redemption price set forth in this prospectus, plus accrued and unpaid interest on the Exchange Notes to be redeemed to, but excluding, the date of redemption.
At any time, or from time to time, on or after August 15, 2029 (three months prior to the maturity date), the 2029 Exchange Notes will be redeemable as a whole or in part, at Wodgina’s option, at a redemption price equal to 100% of the principal amount of the Exchange Notes to be redeemed plus accrued and unpaid interest on the Exchange Notes to be redeemed to, but excluding, the date of redemption. See “Description of the Exchange Notes—2029 Exchange Notes—Optional Redemption.” | |
| Optional Tax Redemption | At any time, the 2029 Exchange Notes may be redeemed in whole, but not in part, at Wodgina’s option, if Additional Amounts become payable due to certain changes in tax laws as described under “Description of the Exchange Notes—2029 Exchange Notes—Optional Redemption for Changes in Withholding Taxes,” at a redemption price equal to 100% of the principal amount of the Exchange Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. See “Description of the Exchange Notes—2029 Exchange Notes—Optional Redemption for Changes in Withholding Taxes.” | |
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| Change of Control | Upon the occurrence of a change of control, holders of the Exchange Notes of a series will have the right to require the issuer of such series of Exchange Notes to repurchase some or all of such Exchange Notes at a price equal to 101% of their principal amount plus accrued and unpaid interest, if any, up to but not including the repurchase date. See “Description of the Exchange Notes—Offer to repurchase upon change of control triggering event.” | |
| Covenants | The indenture governing the Exchange Notes contains covenants that, subject to certain exceptions, limit Albemarle’s ability and the ability of its restricted subsidiaries to create liens and to enter into sale and leaseback transactions, and limit the issuers’ ability to consolidate, merge or transfer or lease all or substantially all of the issuers’ properties and assets. See “Description of the Exchange Notes—Certain Covenants.” | |
| Material Income Tax Consequences | The exchange of outstanding Restricted Notes for Exchange Notes in the exchange offer will not constitute taxable events to holders for United States federal income tax purposes or a taxable gain for Australian income tax purposes. See “Material Income Tax Consequences.” | |
| Use of Proceeds | The issuers will not receive any cash proceeds from the issuance of the Exchange Notes in the exchange offer. See “Use of Proceeds.” | |
| Trustee | U.S. Bank National Association | |
| Governing Law | New York | |
| Risk Factors | See “Risk Factors.” | |
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You should carefully consider the specific risk factors set forth below as well as the other information contained or incorporated by reference in this prospectus before deciding to invest in the Exchange Notes. See Item 1A “Risk Factors” in Albemarle’s Annual Report on Form 10-K for the year ended December 31, 2019 and Albemarle’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020. Some factors in this section are “forward-looking statements.” For a discussion of those statements and of other factors for investors to consider, see “Forward-Looking Statements.”
The COVID-19 pandemic could have a material adverse effect on Albemarle’s and Wodgina’s results of operations, financial position, and cash flows.
The COVID-19 pandemic has created significant uncertainty and economic disruption. The extent to which it impacts our business, results of operations, financial position, and cash flows is difficult to predict and dependent upon many factors over which we have no control. These factors include, but are not limited to, the duration and severity of the pandemic; government restrictions on businesses and individuals; the health and safety of our employees and communities in which we do business; the impact of the pandemic on our customers’ businesses and the resulting demand for our products; the impact on our suppliers and supply chain network; the impact on U.S. and global economies and the timing and rate of economic recovery; and potential adverse effects on the financial markets.
Albemarle has taken, and plans to continue to take, certain measures to maintain financial flexibility, including delaying certain capital expenditure projects and accelerating our cost savings initiative, while still protecting our employees and customers. However, if conditions caused by the COVID-19 pandemic worsen and the Albemarle’s earnings and cash flow from operations do not start to recover as contemplated in the Albemarle’s current plans, Albemarle may not be able to maintain compliance with its financial covenants and it will require Albemarle to seek additional amendments to its credit agreements. If Albemarle is not able to obtain such necessary additional amendments, this would lead to an event of default and its lenders could require Albemarle to repay its outstanding debt. In that situation, Albemarle may not be able to raise sufficient debt or equity capital, or divest assets, to refinance or repay the lenders.
Because a significant portion of Albemarle’s operations is conducted through its subsidiaries and joint ventures, Albemarle’s ability to service its debt could be dependent on its receipt of distributions or other payments from its subsidiaries and joint ventures.
A significant portion of Albemarle’s operations is conducted through its subsidiaries and joint ventures. As a result, Albemarle’s ability to service its debt could be dependent on the earnings of our subsidiaries and joint ventures and the payment of those earnings to us in the form of dividends, loans or advances and through repayment of loans or advances from Albemarle. Payments to Albemarle by its subsidiaries and joint ventures will be contingent upon our subsidiaries’ or joint ventures’ earnings and other business considerations and may be subject to statutory or contractual restrictions. In addition, there may be significant tax and other legal restrictions on the ability of non-U.S. subsidiaries or joint ventures to remit money to Albemarle.
Payment on Exchange Notes will be structurally subordinated to indebtedness of Albemarle’s subsidiaries and, in the case of the 2029 Exchange Notes, Wodgina’s joint venture interest.
The Exchange Notes will be structurally subordinated in right of payment to all existing and future debt and other liabilities, including trade payables, of Albemarle’s subsidiaries (other than, in the case of the 2029 Exchange Notes, Wodgina) and joint ventures and the claims of creditors of those subsidiaries and joint ventures, including trade creditors, will have priority as to the assets of those subsidiaries and joint ventures. In addition, the indenture under which the Exchange Notes will be issued will permit these subsidiaries and joint ventures to incur additional indebtedness, subject to certain limitations.
The 2029 Exchange Notes will be obligations of Wodgina and will be guaranteed only by Albemarle and not by any of Albemarle’s other subsidiaries. Wodgina is a wholly owned indirect subsidiary of Albemarle. Wodgina’s cash flow and ability to make payments on the 2029 Exchange Notes could be dependent upon the earnings it derives from the production from the joint venture. Absent income received from sales of its share of
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production from the joint venture, Wodgina’s ability to service the 2029 Exchange Notes could be dependent upon the earnings of our subsidiaries and other joint ventures and the payment of those earnings to Wodgina in the form of equity, loans or advances and through repayment of loans or advances from Wodgina.
Wodgina and WLPL, as the parties to the Joint Venture, have announced on October 31, 2019 that production of spodumene from the Wodgina Project will be idled until market demand supports bringing the Wodgina Project back into production.
Wodgina’s obligations in respect of the Joint Venture are guaranteed by Albermarle. Further, under the Joint Venture pursuant to a deed of cross security between Wodgina, WLPL and the Manager, each of Wodgina and WLPL have granted security to each other and the Manager for the obligations each of Wodgina and WLPL have to each other and to the Manager. The claims of WLPL, the Manager and other secured creditors of Wodgina will have priority as to the assets of Wodgina over the claims of holders of the 2029 Exchange Notes.
As of March 31, 2020, Albemarle had consolidated total debt of approximately $3.14 billion, of which $1.46 billion) is indebtedness of Albemarle’s subsidiaries (or $1.10 billion) excluding Wodgina).
The terms of the indenture and the Exchange Notes provide only limited protection against significant corporate events and other actions the issuers and the guarantor may take that could adversely impact your investment in the Exchange Notes.
While the indenture and the Exchange Notes contain terms intended to provide protection to the holders of the Exchange Notes upon the occurrence of certain events involving significant corporate transactions, such terms are limited and may not be sufficient to protect your investment in the Exchange Notes.
The definition of the term “Change of Control Triggering Event” (as defined in “Description of the Exchange Notes—Offer to Repurchase Upon Change of Control Triggering Event”) does not cover a variety of transactions (such as acquisitions by us or recapitalizations) that could negatively affect the value of your Exchange Notes. If Albemarle or Wodgina were to enter into a significant corporate transaction that would negatively affect the value of the Exchange Notes but would not constitute a Change of Control Triggering Event, the issuers would not be required to offer to repurchase your Exchange Notes prior to their maturity.
Furthermore, the indenture for the Exchange Notes does not:
| • | require Albemarle or Wodgina to maintain any financial ratios or specific levels of net worth, revenues, income, cash flow or liquidity; |
| • | limit the issuers’ ability or the ability of the guarantor to incur indebtedness that is equal in right of payment to the Exchange Notes or the 2029 Exchange Note Guarantee, respectively; |
| • | restrict our subsidiaries’ ability to issue securities or otherwise incur indebtedness that would be senior to our equity interests in our subsidiaries and therefore rank effectively senior to the Exchange Notes; |
| • | limit the ability of our subsidiaries to service indebtedness; |
| • | limit the ability of Wodgina or other subsidiaries of Albemarle that are not restricted subsidiaries under the indenture from incurring liens or entering into sale-leaseback transactions; |
| • | restrict our ability to repurchase or prepay any other of our securities or other indebtedness; or |
| • | restrict our ability to make investments or to repurchase or pay dividends or make other payments in respect of our common stock or other securities ranking junior to the Exchange Notes. |
As a result of the foregoing, when evaluating the terms of the Exchange Notes, you should be aware that the terms of the indenture and the Exchange Notes do not restrict Albemarle’s and Wodgina’s ability to engage in, or to otherwise be a party to, a variety of corporate transactions, circumstances and events that could have an adverse impact on your investment in the Exchange Notes.
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Changes in credit ratings issued by nationally recognized statistical rating organizations could adversely affect the cost of financing and the market price of the Exchange Notes.
Credit rating agencies rate debt securities on factors that include operating results, actions that the issuers take, their view of the general outlook for our industry and their view of the general outlook for the economy. Actions taken by the rating agencies can include maintaining, upgrading, or downgrading the current rating or placing the issuers on a watch list for possible future downgrading. Downgrading the credit rating of each issuer’s debt securities or placing them on a watch list for possible future downgrading would likely increase each issuer’s cost of financing, limit their access to the capital markets and have an adverse effect on the market price of their securities.
Borrowings under a portion of Albemarle’s debt facilities, including the $1.2 billion unsecured credit facility (the “New Credit Facility”) and its $1.0 billion revolving unsecured credit facility (the “Revolving Credit Facility”), bear interest at floating rates, and are subject to adjustment based on the ratings of our senior unsecured long-term debt. The downgrading of any of Albemarle’s ratings or an increase in any of the benchmark interest rates would result in an increase of the interest expense on its variable rate borrowings.
The instruments governing the issuers’ indebtedness do not limit acquisitions and allow the issuers to incur additional indebtedness, including indebtedness in relation to acquisitions.
Albemarle has historically expanded its business primarily through acquisitions. A part of Albemarle’s business strategy is to continue to grow through acquisitions that complement and expand its distribution network. The indenture governing the Exchange Notes, and the terms of the issuers’ other indebtedness, do not limit the number or scale of acquisitions that the issuers may complete. Because the consummation of acquisitions and integration of acquired businesses involves significant risk, this means that holders of the Exchange Notes will be subject to the risks inherent in our acquisitive strategy.
In addition, the indenture governing the Exchange Notes described in this prospectus does not restrict Albemarle’s or Wodgina’s ability to incur additional unsecured indebtedness and subject to some limitations on Albemarle (but not Wodgina), permits Albemarle and Wodgina to incur secured indebtedness. The Exchange Notes will be effectively subordinated to any secured indebtedness the issuers may incur to the extent of the value of the collateral securing such indebtedness. Each of the New Credit Facility and the Revolving Credit Facility does limit the amount of consolidated funded debt (as defined in the credit agreements governing such facilities) that the issuers can incur, insofar as we must comply with financial covenants limiting the maximum net leverage ratio that Albemarle is permitted to maintain to 4.00 times Consolidated EBITDA (as defined in such credit agreements) for the fiscal quarter ending June 30, 2020; 4.50 times Consolidated EBITDA for the fiscal quarters through September 30, 2021; 4.00 times Consolidated EBITDA for the fiscal quarters through December 31, 2021; and 3.50 times Consolidated EBITDA for the fiscal quarters thereafter.
The issuers may not have sufficient funds to purchase Exchange Notes upon a Change of Control Triggering Event.
If there is a Change of Control Triggering Event under the terms of the indenture governing the Exchange Notes, each holder of Exchange Notes of a series may require the applicable issuer to purchase all or a portion of their Exchange Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, up to but not including the date of purchase. In order to purchase any outstanding Exchange Notes, the issuers might have to refinance their outstanding indebtedness, which the issuers might not be able to do. Even if the issuers were able to refinance their other indebtedness, any financing might be on terms unfavorable to the issuers. In addition, each of the Revolving Credit Facility and the New Credit Facility provides that the occurrence of certain kinds of change of control events will constitute a default under the applicable facility. The issuers cannot assure you that they will have the financial ability to purchase outstanding Exchange Notes upon the occurrence of a change of control. See “Description of the Exchange Notes—Offer to Repurchase Upon Change of Control Triggering Event.”
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There may be no public trading market for the Exchange Notes.
The issuers have not applied and do not intend to apply for listing of the Exchange Notes on any securities exchange or any automated quotation system. As a result, a market for the Exchange Notes may not develop or, if one does develop, it may not be maintained. If an active market for the Exchange Notes fails to develop or be sustained, the trading price and liquidity of the Exchange Notes could be adversely affected.
If you are able to resell your Exchange Notes, many other factors may affect the price you receive, which may be lower than you believe to be appropriate.
If you are able to resell your Exchange Notes, the price you receive will depend on many other factors that may vary over time, including:
| • | Albemarle’s financial performance; |
| • | the amount of indebtedness Albemarle, Wodgina and Albemarle’s other subsidiaries have outstanding; |
| • | the market for similar securities; |
| • | market interest rates; |
| • | the redemption (if any) and repayment features of the notes to be sold; and |
| • | the time remaining to maturity of your Exchange Notes. |
As a result of these factors, you may only be able to sell your Exchange Notes at prices below those you believe to be appropriate, including prices below the price you paid for them.
Any insolvency proceedings with respect to Wodgina will be governed by Australian insolvency laws, which are different from the insolvency laws of the United States and certain other jurisdictions.
The insolvency laws applicable in Australia are different from the insolvency laws of the United States and certain other jurisdictions, in particular, the voluntary administration procedure under the Corporations Act 2001 (Cth) of Australia (the “Corporations Act”), which provides for the potential re-organization of an insolvent company, differs significantly from Chapter II of the U.S. Bankruptcy Code. If Wodgina becomes insolvent, the treatment and ranking of holders of the 2029 Exchange Notes, its other creditors and shareholders under Australian law may be different than the treatment and ranking of holders of the 2029 Exchange Notes, its other creditors and shareholders if it were subject to the bankruptcy laws of the United States or certain other jurisdictions. For instance, the High Court of Australia has ruled that shareholders may, in certain circumstances, rank alongside unsecured creditors in a winding-up where shareholders have an independent damages claim against the debtor company arising out of the purchase of their shares.
You may be unable to effect service of process or enforce judgments obtained in U.S. courts against Wodgina or its directors and executive officers.
Wodgina is a corporation organized under the laws of Australia. Additionally, some of the directors and executive officers of Wodgina reside, and substantially all of the assets of such persons are located, outside the United States. As a result, it may not be possible for investors to effect service of process for a lawsuit within the United States upon such persons, including with respect to matters arising under the Securities Act, or to enforce against any of them, judgments in non-U.S. courts obtained in courts of the United States predicated upon, among other things, the civil liability provisions of the U.S. federal securities laws.
Additionally, there is doubt as to the enforceability in Australia, in original actions or in actions for enforcement of judgments of U.S. courts, of civil liabilities based on U.S. federal securities laws. Also, judgments of U.S. courts (whether or not such judgments relate to U.S. federal securities laws) will not be enforceable in Australia in certain other circumstances. See “Enforcement of Civil Liabilities.”
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The amount of interest payable on the 2022 Exchange Notes is set only once per interest period based on the three-month LIBOR rate on the interest determination date, which rate may fluctuate substantially.
In the past, the level of the three-month LIBOR rate has experienced significant fluctuations. You should note that historical levels, fluctuations and trends of the three-month LIBOR rate are not necessarily indicative of future levels. Any historical upward or downward trend in the three-month LIBOR rate is not an indication that the three-month LIBOR rate is more or less likely to increase or decrease at any time during an interest period (as described in “Description of the Exchange Notes”), and you should not take the historical levels of the three-month LIBOR rate as an indication of its future performance. You should further note that, although the actual three-month LIBOR rate on an interest payment date or at other times during an interest period may be higher than the three-month LIBOR rate on the applicable interest determination date, you will not benefit from the three-month LIBOR rate at any time other than on the interest determination date for such interest period. As a result, changes in the three-month LIBOR rate may not result in a comparable change in the market value of the 2022 Exchange Notes. Increases in the three-month LIBOR rate as of any interest determination date will require us to make higher interest payments on the 2022 Exchange Notes.
Uncertainty relating to the calculation of LIBOR and other reference rates and their potential discontinuance may materially adversely affect the value of the 2022 Exchange Notes.
National and international regulators and law enforcement agencies have conducted investigations into a number of rates or indices which are deemed to be “reference rates.” Actions by such regulators and law enforcement agencies may result in changes to the manner in which certain reference rates are determined, their discontinuance, or the establishment of alternative reference rates. In particular, on July 27, 2017, the Chief Executive of the U.K. Financial Conduct Authority (the “FCA”), which regulates LIBOR, announced that the FCA will no longer persuade or compel banks to submit rates for the calculation of LIBOR after 2021. Such announcement indicates that the continuation of LIBOR on the current basis cannot and will not be guaranteed after 2021. Notwithstanding the foregoing, it appears highly likely that LIBOR will be discontinued or modified by 2021.
At this time, it is not possible to predict the effect that these developments, any discontinuance, modification or other reforms to LIBOR or any other reference rate, or the establishment of alternative reference rates may have on LIBOR, other benchmarks or floating rate debt securities, including the 2022 Exchange Notes. Uncertainty as to the nature of such potential discontinuance, modification, alternative reference rates or other reforms may materially adversely affect the trading market for securities linked to such benchmarks, including the 2022 Exchange Notes. Furthermore, the use of alternative reference rates or other reforms could cause the interest rate calculated for the 2022 Exchange Notes to be materially different than expected.
If it is determined that LIBOR has been discontinued and an alternative reference rate for three-month LIBOR is used as described in “Description of the Exchange Notes—2022 Exchange Notes—Interest”, Albemarle’s (or its designee, which may be the calculation agent, a successor calculation agent, or such other designee of Albemarle’s (any of such entities, a “Designee”)) may make certain adjustments to such rate, including applying a spread thereon or with respect to the business day convention, interest determination dates and related provisions and definitions, to make such alternative reference rate comparable to three-month LIBOR, in a manner that is consistent with industry-accepted practices or applicable regulatory or legislative actions or guidance for such alternative reference rate. See “Description of the Exchange Notes—2022 Exchange Notes—Interest”. Any of the specified methods of determining floating rate alternative reference rates or the permitted adjustments to such rates may result in interest payments on your 2022 Exchange Notes that are lower than or that do not otherwise correlate over time with the payments that would have been made on the 2022 Exchange Notes if published LIBOR continued to be available. Other floating rate debt securities issued by other issuers, by comparison, may be subject in similar circumstances to different procedures for the establishment of alternative reference rates. Any of the foregoing may have a material adverse effect on the amount of interest payable on your 2022 Exchange Notes, or the market liquidity and market value of your 2022 Exchange Notes.
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Interest on the 2022 Exchange Notes will be calculated using a Benchmark Replacement selected by us or our Designee if a Benchmark Transition Event occurs.
As described in detail in the section “Description of the Exchange Notes—2022 Exchange Notes—Interest—Effect of Benchmark Transition Event” (the “benchmark transition provisions”), if during the term of the 2022 Exchange Notes, Albemarle (or its Designee) determine that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR, Albemarle (or its Designee) in our sole discretion will select a Benchmark Replacement as the base rate in accordance with the benchmark transition provisions. The Benchmark Replacement will include a spread adjustment and technical, administrative or operational changes described in the benchmark transition provisions may be made to the interest rate determination if Albemarle (or its Designee) determine in our sole discretion they are required.
Albemarle’s interests (or those of its Designee) in making the determinations described above may be adverse to your interests as a holder of the 2022 Exchange Notes. The selection of a Benchmark Replacement, and any decisions made by Albemarle (or its Designee) in connection with implementing a Benchmark Replacement with respect to the 2022 Exchange Notes, could result in adverse consequences to the applicable interest rate on the 2022 Exchange Notes, which could adversely affect the return on, value of and market for such securities. Further, there is no assurance that the characteristics of any Benchmark Replacement will be similar to LIBOR or that any Benchmark Replacement will produce the economic equivalent of LIBOR.
The Secured Overnight Financing Rate (“SOFR”) is a relatively new market index and as the related market continues to develop, there may be an adverse effect on the return on or value of the 2022 Exchange Notes.
If a Benchmark Transition Event and its related Benchmark Replacement Date occur, then the rate of interest on the 2022 Exchange Notes will be determined using SOFR (unless a Benchmark Transition Event and its related Benchmark Replacement Date also occur with respect to the Benchmark Replacements that are linked to SOFR, in which case the rate of interest will be based on the next-available Benchmark Replacement). In the following discussion of SOFR, when we refer to SOFR-linked notes or debt securities, we mean the 2022 Exchange Notes at any time when the rate of interest on those notes or debt securities is or will be determined based on SOFR.
The Benchmark Replacements specified in the benchmark transition provisions include Term SOFR, a forward-looking term rate which will be based on the Secured Overnight Financing Rate. Term SOFR is currently being developed under the sponsorship of the Federal Reserve Bank of New York (the “NY Federal Reserve”), and there is no assurance that the development of Term SOFR will be completed. If a Benchmark Transition Event and its related Benchmark Replacement Date occur with respect to LIBOR and, at that time, a form of Term SOFR has not been selected or recommended by the Federal Reserve Board, the NY Federal Reserve, a committee thereof or successor thereto, then the next-available Benchmark Replacement under the benchmark transition provisions will be used to determine the amount of interest payable on the 2022 Exchange Notes for the next applicable interest period and all subsequent interest periods (unless a Benchmark Transition Event and its related Benchmark Replacement Date occur with respect to that next-available Benchmark Replacement).
These replacement rates and adjustments may be selected or formulated by (i) the Relevant Governmental Body (as defined in the benchmark transition provisions) (such as the Alternative Reference Rates Committee of the NY Federal Reserve), (ii) the International Swaps and Derivatives Association, Inc., or (iii) in certain circumstances, us (or our Designee). In addition, the benchmark transition provisions expressly authorize us (or our Designee) to make Benchmark Replacement Conforming Changes with respect to, among other things, the determination of interest periods and the timing and frequency of determining rates and making payments of interest. The application of a Benchmark Replacement and Benchmark Replacement Adjustment, and any implementation of Benchmark Replacement Conforming Changes, could result in adverse consequences to the amount of interest payable on the 2022 Exchange Notes, which could adversely affect the return on, value of and market for the 2022 Exchange Notes. Further, there is no assurance that the characteristics of any Benchmark Replacement will be similar to the then-current Benchmark that it is replacing, or that any Benchmark Replacement will produce the economic equivalent of the then-current Benchmark that it is replacing.
The NY Federal Reserve began to publish SOFR in April 2018. Although the NY Federal Reserve has also begun publishing historical indicative SOFR going back to 2014, such prepublication historical data inherently involves assumptions, estimates and approximations. You should not rely on any historical changes or trends in SOFR as an indicator of the future performance of SOFR. Since the initial publication of SOFR, daily changes in the rate have, on occasion, been more volatile than daily changes in comparable benchmark or market rates. As a result, the return on and value of SOFR-linked debt securities may fluctuate more than floating rate debt securities that are linked to less volatile rates.
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Also, since SOFR is a relatively new market index, SOFR-linked debt securities likely will have no established trading market when issued, and an established trading market may never develop or may not be very liquid. Market terms for debt securities indexed to SOFR, such as the spread over the index reflected in interest rate provisions, may evolve over time, and trading prices of the 2022 Exchange Notes may be lower than those of later-issued SOFR-linked debt securities as a result. Similarly, if SOFR does not prove to be widely used in securities like the 2022 Exchange Notes, the trading price of those securities may be lower than those of debt securities linked to rates that are more widely used. Debt securities indexed to SOFR may not be able to be sold or may not be able to be sold at prices that will provide a yield comparable to similar investments that have a developed secondary market, and may consequently suffer from increased pricing volatility and market risk.
The NY Federal Reserve notes on its publication page for SOFR that use of SOFR is subject to important limitations, indemnification obligations and disclaimers, including that the NY Federal Reserve may alter the methods of calculation, publication schedule, rate revision practices or availability of SOFR at any time without notice. There can be no guarantee that SOFR will not be discontinued or fundamentally altered in a manner that is materially adverse to you as a holder of 2022 Exchange Notes. If the manner in which SOFR is calculated is changed or if SOFR is discontinued, that change or discontinuance may result in a reduction or elimination of the amount of interest payable on the 2022 Exchange Notes and a reduction in their trading prices.
If you do not properly tender your Restricted Notes, your ability to transfer such outstanding Restricted Notes will be adversely affected and the trading market for such Restricted Notes may be limited.
The issuers will only issue Exchange Notes in exchange for Restricted Notes that are timely received by the exchange agent, together with all required documents, including a properly completed and signed letter of transmittal or properly transferred via book entry in accordance with the procedures described in this prospectus. Therefore, you should allow sufficient time to ensure timely delivery of the Restricted Notes and you should carefully follow the instructions on how to tender your Restricted Notes. Neither the issuers nor the exchange agent is required to tell you of any defects or irregularities with respect to your tender of Restricted Notes. If you do not tender your Restricted Notes or if your tender of Restricted Notes is not accepted because you did not tender your Restricted Notes properly, then, after consummation of the exchange offers, you will continue to hold Restricted Notes that are subject to the existing transfer restrictions. After the exchange offers are consummated, if you continue to hold any Restricted Notes, you may have difficulty selling them because there will be fewer Restricted Notes remaining and the market for such Restricted Notes, if any, will be much more limited than it is currently. In particular, the trading market for unexchanged Restricted Notes could become more limited than the existing trading market for the Restricted Notes and could cease to exist altogether due to the reduction in the amount of the Restricted Notes remaining upon consummation of the exchange offers. A more limited trading market might adversely affect the liquidity, market price and price volatility of such untendered Restricted Notes.
If you are a broker-dealer or participating in a distribution of the Exchange Notes, you may be required to deliver prospectuses and comply with other requirements.
If you tender your Restricted Notes for the purpose of participating in a distribution of the Exchange Notes, you will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Notes. If you are a broker-dealer that receives Exchange Notes for your own account in exchange for Restricted Notes that you acquired as a result of market-making activities or any other trading activities, you will be required to acknowledge that you will deliver a prospectus in connection with any resale of such Exchange Notes.
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Albemarle and Wodgina, respectively, will not receive any proceeds from the issuance of the Exchange Notes. In consideration for issuing the Exchange Notes contemplated by this prospectus, the issuers will receive Restricted Notes in a like principal amount. Any Restricted Notes that are properly tendered and exchanged pursuant to the exchange offers will be retired and cancelled.
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Purpose and Effect of the Exchange Offers
The issuers entered into Registration Rights Agreement with the initial purchasers of the Restricted Notes of the applicable series in which the issuers agreed, under certain circumstances to use their reasonable efforts to file with the SEC a registration statement relating to offers to exchange the Restricted Notes for Exchange Notes, cause the registration statement to become effective under the Securities Act and complete the exchange offers within 365 days after the original issue date of the Restricted Notes (the “Issue Date”). The Exchange Notes will have terms substantially identical to the terms of such Restricted Notes and related guarantees of such series of Restricted Notes, except that the transfer restrictions, registration rights and additional interest provisions relating to such notes will not apply. The 2022 Restricted Notes and 2029 Restricted Notes were issued on November 25, 2019.
For each Restricted Note surrendered to the issuers pursuant to the exchange offers, the holder who surrendered such Restricted Note will receive an Exchange Note having a principal amount equal to that of the surrendered Restricted Note. Interest on such Exchange Note will accrue (a) from the later of (i) the last interest payment date on which interest was paid on the Restricted Note surrendered in exchange therefor or (ii) if the Restricted Note is surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (b) if no interest has been paid on such Restricted Note, from the Issue Date of the Restricted Notes.
Under the Registration Rights Agreement, if the issuers fail to complete the exchange offers (other than in the event the issuers file a shelf registration statement) or the shelf registration statement, if required thereby, is not declared effective, in either case on or prior to 365 days after the Issue Date (a “Registration Default”), then additional interest will accrue on the principal amount of the applicable series of Restricted Notes that are “registrable securities” (such additional interest, the “Additional Interest”), from and including the date on which any such Registration Default shall occur to, but excluding, the date on which the Registration Default has been cured, in an amount equal to 0.25% per annum (which rate will be increased by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue, provided that the rate at which such additional interest accrues may in no event exceed 1.00% per annum). Following the cure of all Registration Defaults, the accrual of Additional Interest will cease. A copy of the Registration Rights Agreement has been filed as an exhibit to the registration statement of which this prospectus is a part.
If you wish to exchange your outstanding Restricted Notes for Exchange Notes in the exchange offers, you will be required to make the following written representations:
| • | you are not our affiliate within the meaning of Rule 405 of the Securities Act or, if you are such an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable; |
| • | you are not participating, and you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
| • | if you are a broker-dealer, you have not entered into any arrangement or understanding with the issuers or any of our affiliates to distribute the Exchange Notes; |
| • | you are acquiring the Exchange Notes in the ordinary course of your business; and |
| • | you are not acting on behalf of any person or entity that could not truthfully make these representations. |
Each broker-dealer that receives Exchange Notes for its own account in exchange for outstanding Restricted Notes, where the broker-dealer acquired the outstanding Restricted Notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Notes. See “Plan of Distribution.”
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Resale of Exchange Notes
Based on interpretations by the SEC set forth in no-action letters issued to third parties, the issuers believe that you may resell or otherwise transfer Exchange Notes issued in the exchange offers without complying with the registration and prospectus delivery provisions of the Securities Act, if:
| • | you are not our affiliate within the meaning of Rule 405 under the Securities Act; |
| • | you do not have an arrangement or understanding with any person to participate in a distribution of the Exchange Notes; |
| • | you are not engaged in, and do not intend to engage in, a distribution of the Exchange Notes; and |
| • | you are acquiring the Exchange Notes in the ordinary course of your business. |
If you are our affiliate, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the Exchange Notes, or are not acquiring the Exchange Notes in the ordinary course of your business:
| • | you cannot rely on the position of the SEC set forth in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling, dated July 2, 1993, or similar no-action letters; and |
| • | in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale of the Exchange Notes. |
This prospectus may be used for an offer to resell, resale or other transfer of Exchange Notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the Restricted Notes as a result of market-making activities or other trading activities may participate in the exchange offers. Each broker-dealer that receives Exchange Notes for its own account in exchange for Restricted Notes, where such Restricted Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the Exchange Notes. Please read “Plan of Distribution” for more details regarding the transfer of Exchange Notes.
Terms of the Exchange Offers
On the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, the issuers will accept for exchange in the exchange offers any Restricted Notes that are validly tendered and not validly withdrawn prior to the expiration date. Restricted Notes may only be tendered in a minimum denomination of $2,000 and integral multiples of $1,000 thereafter, and any unexchanged portion of a Restricted Note must be in a principal amount of $2,000 or integral multiples of $1,000 thereafter. The issuers will issue Exchange Notes in principal amounts identical to the Restricted Notes surrendered in the exchange offers.
The form and terms of the Exchange Notes will be identical in all material respects to the form and terms of the Restricted Notes of the corresponding series except the Exchange Notes will be registered under the Securities Act, will not bear legends restricting their transfer and will not provide for any additional interest upon our failure to fulfill our obligations under the Registration Rights Agreement to complete the exchange offers, or file, and cause to be effective, a shelf registration statement, if required thereby, within the specified time period. The Exchange Notes will evidence the same debt as the Restricted Notes of the corresponding series. The Exchange Notes will be issued under and entitled to the benefits of the indenture that authorized the issuance of the Restricted Notes. For a description of the indenture, see “Description of the Exchange Notes.”
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The exchange offers are not conditioned upon any minimum aggregate principal amount of Restricted Notes being tendered for exchange.
As of the date of this prospectus, $200 million aggregate principal amount of the Floating Rate Notes due 2022 and $300 million aggregate principal amount of the 3.450% Senior Notes due 2029 that were issued in a private offering on November 25, 2019 are outstanding and unregistered. This prospectus and the letter of transmittal are being sent to all registered holders of Restricted Notes. There will be no fixed record date for determining registered holders of Restricted Notes entitled to participate in the exchange offers. The issuers intend to conduct the exchange offers in accordance with the provisions of the Registration Rights Agreement, the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations of the SEC. Restricted Notes that are not tendered for exchange in the exchange offers will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits such holders have under the indenture relating to such holders’ series of Restricted Notes and the Registration Rights Agreement except, the issuers will not have any further obligation to you to provide for the registration of the Restricted Notes under the Registration Rights Agreement. The issuers will be deemed to have accepted for exchange properly tendered Restricted Notes when the issuers have given written notice of the acceptance to the exchange agent. The exchange agent will act as agent for the issuers for the purposes of receiving the Exchange Notes for the issuers and delivering Exchange Notes to holders. Subject to the terms of the Registration Rights Agreement, the issuers expressly reserve the right to amend or terminate the exchange offers and to refuse to accept the occurrence of any of the conditions specified below under “—Conditions to the Exchange Offers.”
If you tender your Restricted Notes in the exchange offers, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes with respect to the exchange of Restricted Notes. The issuers will pay all charges and expenses, other than certain applicable taxes described below in connection with the exchange offers. It is important that you read “—Fees and Expenses” below for more details regarding fees and expenses incurred in the exchange offers.
Expiration Date; Extensions, Amendments
As used in this prospectus, the term “expiration date” means 11:59 p.m., New York City time, on , 2020. However, if the issuers, in their sole discretion, extend the period of time for which the exchange offers are open, the term “expiration date” will mean the latest time and date to which the issuers shall have extended the expiration of such exchange offer.
To extend the period of time during which the exchange offers are open, the issuers will notify the exchange agent of any extension by written notice, followed by notification by press release or other public announcement to the registered holders of the Restricted Notes no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date.
The issuers expressly reserve the right, so long as applicable law allows:
| • | to delay their acceptance of Restricted Notes for exchange; |
| • | to terminate the exchange offers if any of the conditions set forth under “—Conditions to the Exchange Offers” exist; |
| • | to waive any condition to the exchange offers; |
| • | to amend any of the terms of the exchange offers; and |
| • | to extend the Expiration Date and retain all Restricted Notes tendered in the exchange offers, subject to your right to withdraw your tendered Restricted Notes as described under “— Withdrawal of Tenders.” Any waiver or amendment to the exchange offers will apply to all Restricted Notes tendered, regardless of when or in what order the Restricted Notes were tendered. If the exchange offers are amended in a manner that the issuers think constitutes a material change, or if the issuers waive a material condition of the exchange offers, the issuers will promptly disclose the amendment or waiver in a manner reasonably calculated to inform the holders of Restricted Notes of the amendment or waiver, and the issuers will extend the exchange offers to the extent required by Rule 14-e under the Exchange Act. |
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The issuers will promptly follow any delay in acceptance, termination, extension or amendment by oral or written notice of the event to the exchange agent, followed promptly by oral or written notice to the registered holders. Should the issuers choose to delay, extend, amend or terminate the exchange offers, the issuers will have no obligation to publish, advertise or otherwise communicate this announcement, other than by making a timely release to a financial news service.
In the event the issuers terminate the exchange offers, all Restricted Notes previously tendered and not accepted for payment will be returned promptly to the tendering holders.
In the event that the exchange offers are withdrawn or otherwise not completed, Exchange Notes will not be given to holders of Restricted Notes who have validly tendered their Restricted Notes.
Acceptance of Restricted Notes for Exchange
In all cases, the issuers will promptly issue Exchange Notes for outstanding Restricted Notes that it has accepted for exchange under the exchange offers only after the exchange agent timely receives:
| • | outstanding Restricted Notes or a timely book-entry confirmation of such outstanding Restricted Notes into the exchange agent’s account at DTC; and |
| • | a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent’s message. |
By tendering outstanding Restricted Notes pursuant to the exchange offers, you will represent to the issuers that, among other things:
| • | you are not our affiliate within the meaning of Rule 405 of the Securities Act or, if you are such an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable; |
| • | you are not participating, and you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
| • | if you are a broker-dealer, you have not entered into any arrangement or understanding with the issuers or any of our affiliates to distribute the Exchange Notes; |
| • | you are acquiring the Exchange Notes in the ordinary course of your business; and |
| • | you are not acting on behalf of any person or entity that could not truthfully make these representations. |
In addition, each broker-dealer that is to receive Exchange Notes for its own account in exchange for outstanding Restricted Notes must represent that such outstanding Restricted Notes were acquired by that broker-dealer as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the Exchange Notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. See “Plan of Distribution.”
The issuers will interpret the terms and conditions of the exchange offers, including the letter of transmittal and the instructions to the letter of transmittal, and will resolve all questions as to the validity, form, eligibility, including time of receipt, and acceptance of outstanding Restricted Notes tendered for exchange. Our determinations in this regard will be final and binding on all parties. The issuers reserves the absolute right to reject any and all tenders of any particular outstanding Restricted Notes not properly tendered or not to accept any
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particular Restricted Notes if the acceptance might, in its or its counsel’s judgment, be unlawful. The issuers also reserve the absolute right to waive any defects or irregularities as to any particular outstanding Restricted Notes prior to the Expiration Date.
Unless waived, any defects or irregularities in connection with tenders of outstanding Restricted Notes for exchange must be cured within such reasonable period of time as the issuers determine. Neither of the issuers, the exchange agent or any other person will be under any duty to give notification of any defect or irregularity with respect to any tender of outstanding Restricted Notes for exchange, nor will any of them incur any liability for any failure to give notification. Any outstanding Restricted Notes received by the exchange agent that are not properly tendered and as to which the irregularities have not been cured or waived will be returned by the exchange agent to the tendering holder, unless otherwise provided in the letter of transmittal, promptly after the Expiration Date.
Procedures for Tendering Restricted Notes
To tender your outstanding Restricted Notes in the exchange offers, you must comply with either of the following:
| • | complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal, have the signature(s) on the letter of transmittal guaranteed if required by the letter of transmittal and mail or deliver such letter of transmittal or facsimile thereof to the exchange agent at the address set forth on the inside back cover of this prospectus prior to the Expiration Date; or |
| • | comply with the procedures of the Automated Tender Offer Program of the DTC described below. |
In addition, either:
| • | the exchange agent must receive certificates for outstanding Restricted Notes along with the letter of transmittal prior to the Expiration Date; or |
| • | the exchange agent must receive a timely confirmation of book-entry transfer of outstanding Restricted Notes into the exchange agent’s account at DTC according to the procedures for book-entry transfer described below or a properly transmitted agent’s message prior to the Expiration Date. |
Your tender, if not withdrawn prior to the Expiration Date, constitutes an agreement between the issuers and you upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal.
If you wish to exchange your outstanding Restricted Notes for Exchange Notes in the exchange offers, you will be required to make the written representations as set forth in “—Purpose and Effect of the Exchange Offers.”
The method of delivery of outstanding Restricted Notes, letters of transmittal and all other required documents to the exchange agent is at your election and risk. The issuers recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure timely delivery to the exchange agent before the Expiration Date. You should not send letters of transmittal or certificates representing outstanding Restricted Notes to the issuers. You may request that your broker, dealer, commercial bank, trust company or nominee effect the above transactions for you.
If you are a beneficial owner whose outstanding Restricted Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your outstanding Restricted Notes, you should promptly contact your registered holder and instruct the registered holder to tender on your behalf.
Signatures on the letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by a member firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, Inc., a commercial bank or trust company having an office or correspondent in the United States or another “eligible guarantor institution” within the meaning of Rule 17A(d)-15 under the Exchange Act unless the outstanding Restricted Notes surrendered for exchange are tendered:
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| • | by a registered holder of the outstanding Restricted Notes who has not completed the box entitled “Special Registration Instructions” or “Special Delivery Instructions” on the letter of transmittal; or |
| • | for the account of an eligible guarantor institution. |
If the letter of transmittal is signed by a person other than the registered holder of any Restricted Notes listed on the outstanding Restricted Notes, such outstanding Restricted Notes must be endorsed or accompanied by a properly completed bond power. The bond power must be signed by the registered holder as the registered holder’s name appears on the outstanding Restricted Notes, and an eligible guarantor institution must guarantee the signature on the bond power.
If the letter of transmittal, any certificates representing outstanding Restricted Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should also indicate when signing and, unless waived by the issuers, they should also submit evidence satisfactory to the issuers of their authority to so act.
The exchange agent and DTC have confirmed that any financial institution that is a participant in DTC’s system may use DTC’s Automated Tender Offer Program to tender Restricted Notes. Participants in the program may, instead of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their acceptance of the exchange by causing DTC to transfer the Restricted Notes to the exchange agent in accordance with DTC’s Automated Tender Offer Program procedures for transfer. DTC will then send an agent’s message to the exchange agent. The term “agent’s message” means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, which states that:
| • | DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that is tendering outstanding Restricted Notes that are the subject of the book- entry confirmation; |
| • | the participant has received and agrees to be bound by the terms of the letter of transmittal; and |
| • | the issuers may enforce that agreement against such participant. |
Book-Entry Transfer
The exchange agent will seek to establish a new account or utilize an existing account with respect to the Restricted Notes at DTC promptly after the date of this prospectus. Any financial institution that is a participant in the DTC system and whose name appears on a security position listing as the owner of the Restricted Notes may make book-entry delivery of Restricted Notes by causing DTC to transfer such Restricted Notes into the exchange agent’s account. The confirmation of a book-entry transfer of Restricted Notes into the exchange agent’s account at DTC is referred to in this prospectus as a “book-entry confirmation.” Delivery of documents to DTC in accordance with DTC’s procedures does not constitute delivery to the exchange agent.
Other Matters
Exchange Notes will be issued in exchange for Restricted Notes accepted for exchange only after timely receipt by the exchange agent of:
| • | certificates for (or a timely book-entry confirmation with respect to) your Restricted Notes; |
| • | a properly completed and duly executed letter of transmittal or facsimile thereof with any required signature guarantees, or, in the case of a book-entry transfer, an agent’s message; and |
| • | any other documents required by the letter of transmittal. |
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The issuers will determine, in the sole discretion of the issuers, all questions as to the form of all documents, validity, eligibility, including time of receipt, and acceptance of all tenders of Restricted Notes. There will be no guaranteed delivery procedures for the exchange offers. Our determination will be final and binding on all parties. Alternative, conditional or contingent tenders of Restricted Notes will not be considered valid. The issuers reserve the absolute right to reject any or all tenders of Restricted Notes that are not in proper form or the acceptance of which, in our opinion, would be unlawful. The issuers also reserve the right to waive any defects, irregularities or conditions of tender as to particular Restricted Notes.
Our interpretation of the terms and conditions of the exchange offers, including the instructions in the accompanying letter of transmittal, will be final and binding.
Any defect or irregularity in connection with tenders of Restricted Notes must be cured within the time the issuers determine, unless waived by the issuers. The issuers will not consider the tender of Restricted Notes to have been validly made until all defects and irregularities have been waived by the issuers or cured. Neither of the issuers, the exchange agent or any other person will be under any duty to give notice of any defects or irregularities in tenders of Restricted Notes, or will incur any liability to holders for failure to give any such notice.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, you may withdraw your tender of Restricted Notes at any time prior to the Expiration Date.
For a withdrawal to be effective:
| • | the exchange agent must receive a written notice of withdrawal at the address set forth on the inside of the back cover of this prospectus; or |
| • | you must comply with the appropriate procedures of DTC’s Automated Tender Offer Program system. |
Any notice of withdrawal must:
| • | specify the name of the person who tendered the Restricted Notes to be withdrawn; |
| • | identify the Restricted Notes to be withdrawn, including the certificate numbers and principal amount of the Restricted Notes; |
| • | be signed by the person who tendered the Restricted Notes in the same manner as the original signature on the letter of transmittal, including any required signature guarantees; and |
| • | specify the name in which the Restricted Notes are to be re-registered, if different from that of the withdrawing holder. |
If Restricted Notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Restricted Notes and otherwise comply with the procedures of DTC.
The issuers will determine in the sole discretion of the issuers all questions as to validity, form, eligibility and time of receipt of any withdrawal notices. Our determination will be final and binding on all parties. The issuers will deem any Restricted Notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offers.
Any Restricted Notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder without cost to the holder or, in the case of Restricted Notes tendered by book-entry transfer into the exchange agent’s account at DTC according to the procedures described above, such Restricted Notes will be credited to an account maintained with DTC for the Restricted Notes. This return or crediting will take place promptly after withdrawal, rejection of tender or termination of the exchange offers. You may retender properly withdrawn Restricted Notes by following one of the procedures described under “—Procedures for Tendering Restricted Notes” at any time on or prior to the Expiration Date.
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Conditions to the Exchange Offer
Despite any other term of the exchange offers, the issuers will not be required to accept for exchange, or to issue Exchange Notes in exchange for, any outstanding Restricted Notes and it may terminate or amend the exchange offers as provided in this prospectus prior to the Expiration Date if in its reasonable judgment:
| • | the exchange offers or the making of any exchange by a holder violates any applicable law or interpretation of the SEC; |
| • | any action or proceeding has been instituted or threatened in writing in any court or by or before any governmental agency with respect to the exchange offers that, in our judgment, would reasonably be expected to impair our ability to proceed with the exchange offers; or |
| • | any law, rule or regulation or applicable interpretations of the staff of the SEC have been issued or promulgated, which, in our good faith determination, does not permit the issuers to effect either of the exchange offers. |
The issuers expressly reserves the right at any time or at various times to extend the period of time during which the exchange offers is open. Consequently, the issuers may delay acceptance of any Restricted Notes by giving oral or written notice of such extension to their holders. The issuers will return any outstanding Restricted Notes that it does not accept for exchange for any reason without expense to their tendering holder promptly after the expiration or termination of the exchange offers.
The issuers expressly reserves the right to amend or terminate the exchange offers and to reject for exchange any outstanding Restricted Notes not previously accepted for exchange, upon the occurrence of any of the conditions to the exchange offers specified above. The issuers will give oral or written notice of any extension, amendment, non-acceptance or termination of the exchange offers to the holders of the outstanding Restricted Notes as promptly as practicable. In the case of any extension of the exchange offers, such notice will be issued no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.
These conditions are for our sole benefit, and the issuers may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times prior to the Expiration Date in the sole discretion of the issuers. If the issuers fails at any time to exercise any of the foregoing rights, this failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that it may assert at any time or at various times prior to the Expiration Date.
In addition, the issuers will not accept for exchange any outstanding Restricted Notes tendered, and will not issue Exchange Notes in exchange for any such outstanding Restricted Notes, if at such time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture governing the Exchange Notes under the Trust Indenture Act of 1939, as amended.
Consequences of Failing to Exchange
If you do not exchange your Restricted Notes for Exchange Notes in the exchange offers, you will remain subject to the restrictions on transfer of the Restricted Notes:
| • | as set forth in the legend printed on the Restricted Notes as a consequence of the issuance of the Restricted Notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws; and |
| • | otherwise set forth in the offering memoranda distributed in connection with the private offerings of the Restricted Notes. |
In general, you may not offer or sell the Restricted Notes unless they are registered under the Securities Act, or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Upon completion of the exchange offers, the issuers are under no obligation to, and do not intend to, register resales of the outstanding Restricted Notes under the Securities Act.
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Accounting Treatment
The Exchange Notes will be recorded at the same carrying value as the Restricted Notes, as reflected in our accounting records on the date of the exchange. Accordingly, the issuers will not recognize any gain or loss for accounting purposes upon the consummation of the exchange offers. The expenses of the exchange offers and the remaining unamortized expenses related to the issuance of the Restricted Notes will be amortized over the term of the Exchange Notes.
Exchange Agent
U.S. Bank National Association has been appointed as exchange agent for the exchange offers. You should direct questions and requests for assistance, requests for additional copies of this prospectus, the letter of transmittal or any other documents to the exchange agent. You should send certificates for Restricted Notes, letters of transmittal and any other required documents to the exchange agent at the address set forth below:
U.S. Bank National Association
Attn: Corporate Actions
111 Filmore Avenue
St. Paul, MN 55107-1402
Email: cts.specfinance@usbank.com
Fax: (651)-466-7367
Information Agent
U.S. Bank National Association has been appointed as information agent for the exchange offers. Questions concerning tender procedures and requests for additional copies of this prospectus or the letter of transmittal should be directed to the information agent at the address and telephone number set forth on the inside of the back cover of this prospectus. Holders of Restricted Notes may also contact their commercial bank, broker, dealer, trust company or other nominee for assistance concerning the exchange offers.
Resale of Exchange Notes
Based on interpretations by the SEC set forth in no-action letters issued to third parties, the issuers believe that you may resell or otherwise transfer Exchange Notes issued in the exchange offers without complying with the registration and prospectus delivery provisions of the Securities Act, if:
| • | you are not our affiliate within the meaning of Rule 405 of the Securities Act; |
| • | you are not participating, and you have no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
| • | if you are a broker-dealer, you have not entered into any arrangement or understanding with the issuers or any of our affiliates to distribute the Exchange Notes; and |
| • | you are acquiring the Exchange Notes in the ordinary course of your business. |
If you are our affiliate, or are engaging in, or intend to engage in, or have any arrangement or understanding with any person to participate in, a distribution of the Exchange Notes, or are not acquiring the Exchange Notes in the ordinary course of your business:
| • | You cannot rely on the position of the SEC set forth in Morgan Stanley & Co. Incorporated (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling, dated July 2, 1993, and similar no-action letters; and |
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| • | in the absence of an exception from the position stated immediately above, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction of the Exchange Notes, in which case the registration statement must contain the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the SEC. |
This prospectus may be used for an offer to resell, resale or other transfer of Exchange Notes only as specifically set forth in this prospectus. With regard to broker-dealers, only broker-dealers that acquired the outstanding Restricted Notes as a result of market-making activities or other trading activities may participate in the exchange offers. Each broker-dealer that receives Exchange Notes for its own account in exchange for outstanding Restricted Notes, where such outstanding Restricted Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the Exchange Notes. Please read “Plan of Distribution” for more details regarding the transfer of Exchange Notes.
Fees and Expenses
The issuers will bear the expenses of soliciting tenders pursuant to the exchange offers. The principal solicitation for tenders pursuant to the exchange offer is being made by electronic transmission. Additional solicitations may be made by our officers and regular employees and our affiliates in person, by telecopy, mail or telephone.
The issuers will not make any payments to brokers, dealers or other persons soliciting acceptances of the exchange offers. The issuers will, however, pay the exchange agent reasonable and customary fees for its services and will reimburse the exchange agent for its related reasonable out-of-pocket expenses and accounting and legal fees.
The issuers may also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding copies of this prospectus, letters of transmittal and related documents to the beneficial owners of the unregistered notes and in handling or forwarding tenders for exchange.
The issuers will pay all transfer taxes applicable to the transfer and exchange of Restricted Notes pursuant to the exchange offers. If, however:
| • | delivery of the Exchange Notes and/or certificates for Restricted Notes for principal amounts not exchanged, are to be made to any person other than the record holder of the Restricted Notes tendered; |
| • | tendered certificates for Restricted Notes are recorded in the name of any person other than the person signing any letter of transmittal; or |
| • | a transfer tax is imposed for any reason other than the transfer and exchange of Restricted Notes to the issuers or our order, |
the amount of any such transfer taxes, whether imposed on the record holder or any other person, will be payable by the tendering holder prior to the issuance of the Exchange Notes. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with the letter of transmittal, the amount of such transfer taxes will be billed directly to such tendering holder.
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DESCRIPTION OF THE EXCHANGE NOTES
The following description is a summary of the terms of the Exchange Notes being offered. The descriptions in this prospectus contain descriptions of certain terms of the Exchange Notes, the 2029 Exchange Note Guarantee and the indenture but do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the indenture including the definitions of specified terms used in the indenture. When we refer to “Albemarle” in this section, we refer only to Albemarle Corporation and not to its subsidiaries and when we refer to “Wodgina” in this section, we refer only to Albemarle Wodgina Pty Ltd and not to its subsidiaries. As used in this section, “issuer” refers to Albemarle when used with respect to the 2022 Exchange Notes and Wodgina when used with respect to the 2029 Exchange Notes, as applicable, and “guarantor” refers to Albemarle when used with respect to its guarantee of the 2029 Exchange Notes.
General
The Exchange Notes will be issued under the indenture dated as of January 20, 2005, between Albemarle and U.S. Bank National Association, as successor to The Bank of New York Mellon Trust Company, N.A. (formerly The Bank of New York), as trustee, as supplemented by a fifth supplemental indenture (as so supplemented, the “indenture”), dated November 25, 2019, among Albemarle, as issuer of the 2022 Restricted Notes and as guarantor of the 2029 Restricted Notes, Wodgina, as issuer of the 2029 Exchange Notes, and U.S. Bank National Association, as trustee (the “trustee”). You should also refer to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), certain terms of which are made a part of the indenture by reference. With respect to the Exchange Notes of each series, the “date of the indenture” as used in this “Description of the Exchange Notes” means November 25, 2019.
The indenture does not limit Albemarle’s or Wodgina’s ability or the ability of their respective subsidiaries to incur additional indebtedness. As of March 31, 2020, Albemarle had consolidated total debt of approximately $3.14 billion, of which $1.46 billion) is indebtedness of Albemarle’s subsidiaries (or $1.10 billion) excluding Wodgina).
2022 Exchange Notes
The 2022 Exchange Notes will be initially issued in an aggregate principal amount of $200,000,000 and will mature on November 15, 2022 (the “Floating Rate Maturity Date”). The 2022 Exchange Notes will be direct unsecured obligations of Albemarle. The 2022 Exchange Notes are not guaranteed.
Interest
The 2022 Exchange Notes will bear interest (a) from the later of (i) the last interest payment date on which interest was paid on the 2022 Restricted Notes or (ii) if the 2022 Restricted Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date , at a floating rate determined in the manner provided below, payable quarterly on February 15, May 15, August 15 and November 15 of each year (each such day, a “Floating Rate Interest Payment Date”), to the persons in whose names the 2022 Exchange Notes are registered at the close of business on the immediately preceding February 1, May 1, August 1, and November 1, respectively (whether or not a Business Day). The per annum interest rate on the 2022 Exchange Notes (the “Floating Interest Rate”) in effect for each day of an Interest Period (as defined below) will be equal to the Three-Month LIBOR Rate plus 105 basis points (1.05%). The Floating Interest Rate for each Interest Period for the 2022 Exchange Notes will be reset on February 15, May 15, August 15 and November 15 of each year, commencing August 15, 2020 (each such date, an “Interest Reset Date”), until the principal on the 2022 Exchange Notes is paid or made available for payment. The applicable interest rate will be determined two London Business Days prior to each Interest Reset Date (each such date, an “Interest Determination Date”). If any Interest Reset Date and Floating Rate Interest Payment Date (other than the maturity date) for the 2022 Exchange Notes would otherwise be a day that is not a Business Day, such Interest Reset Date and Floating Rate Interest Payment Date will be the next succeeding Business Day, unless the next succeeding Business Day is in the next succeeding calendar month, in which case such Interest Reset Date and Floating Rate Interest Payment Date will be the immediately preceding Business Day (in each case, resulting in a corresponding adjustment to the number of days in the applicable Interest Period). If the maturity date of the 2022 Exchange Notes falls on a day that is not a Business Day, then the related payment of principal and interest will be made on the next day that is a Business Day with the same effect as if made on the date that the payment was first due, and no interest will accrue on the amount so payable for the period from the maturity date.
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The amount of interest for each day that the 2022 Exchange Notes are outstanding (the “Daily Interest Amount”) will be calculated by dividing the Floating Interest Rate in effect for such day by 360 and multiplying the result by the principal amount of 2022 Exchange Notes. The amount of interest to be paid on the 2022 Exchange Notes for any Interest Period will be calculated by adding the Daily Interest Amounts for each day in such Interest Period.
All percentages resulting from any calculation on the 2022 Exchange Notes will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) will be rounded upward to 9.87655% (or .0987655)), and all amounts used in or resulting from the calculation on the 2022 Exchange Notes will be rounded to the nearest cent (with one-half cent being rounded upward).
The Floating Interest Rate on the 2022 Exchange Notes will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application. In no event will the Floating Interest Rate be less than 0.0%.
The Floating Interest Rate and amount of interest to be paid on the 2022 Exchange Notes for each Interest Period will be determined by the calculation agent. All calculations made by the calculation agent shall in the absence of manifest error be conclusive for all purposes and binding on Albemarle, the trustee and the holders of the 2022 Exchange Notes. So long as a Benchmark is required to be determined with respect to the 2022 Exchange Notes, there will at all times be a calculation agent. Initially, U.S. Bank National Association shall serve as calculation agent, provided, however, that U.S. Bank National Association, in its role as calculation agent, trustee or in any other capacity, will not serve as our Designee (as defined below) for purposes of paragraph (b)(2) of the definition of “Three-Month LIBOR Rate”, or in making the determinations described under “Effect of Benchmark Transition Event” below.” U.S. Bank National Association, in its role as calculation agent, trustee or in any other capacity, shall not have any (i) responsibility or liability for the selection, adoption or determination of an alternative or replacement reference rate (including a Benchmark Replacement Adjustment or any Benchmark Replacement Conforming Changes) as a successor or replacement benchmark (including whether any such rate is the appropriate Benchmark Replacement or whether any other conditions to the designation of such rate or any of the determinations described in “Effect of Benchmark Transition Event” below have been satisfied) and shall be entitled to rely upon any determination or designation of such a rate (and any Benchmark Replacement Adjustment or Benchmark Replacement Conforming Changes, or other modifier) by Albemarle or its Designee, or (ii) liability for any failure or delay by Albemarle or its Designee in performing its or their respective duties under the indenture or other transaction documents as a result of the unavailability of LIBOR, or any other Benchmark Replacement described herein or the failure of a Benchmark Replacement to be adopted. The calculation agent may at any time resign by giving written notice to Albemarle of such intention on its part, specifying the date on which such resignation shall become effective; provided that such notice shall be given not less than thirty (30) days prior to stated effective date unless we otherwise agree. The calculation agent may be removed by Albemarle by giving notice in writing specifying such removal and the date when it shall become effective. Upon receipt of such notice of resignation or the giving of such notice of removal, Albemarle shall promptly appoint a successor calculation agent (which may be Albemarle, an affiliate or another person which is a bank, trust company, investment banking firm, or other financial institution), which appointment shall take effect prior to the effective date of such resignation or removal. For the avoidance of doubt, the effectiveness of such resignation or removal shall not be conditional upon or subject to the effectiveness of such appointment of a successor.
As used in this prospectus, “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 and “London Business Day” means any means any day on which commercial banks are open for business (including dealings in U.S. dollars) in London.
“Interest Period” means the period from and including an Interest Reset Date and, in the case of the last such period, from and including the Interest Reset Date immediately preceding the Floating Rate Maturity Date to but not including such Floating Rate Maturity Date. If the Floating Rate Maturity Date is not a Business Day, then the principal amount of the 2022 Exchange Notes plus accrued and unpaid interest thereon shall be paid on the next succeeding Business Day and no interest shall accrue for the Floating Rate Maturity Date, or any day thereafter.
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“Three-Month LIBOR Rate” means the rate determined by the calculation agent in accordance with the following provisions:
| (a) | With respect to any Interest Determination Date, the Three-Month LIBOR Rate will be the three-month rate for deposits in U.S. dollars, commencing on the second London business day immediately following that Interest Determination Date, that appears on the display on Reuters (or any successor service) on the LIBOR 01 page (or any other page as may replace such page on such service or any such successor service, as the case may be) for the purpose of displaying the London interbank rates of major banks for U.S. dollars (the “LIBOR Page”) as of 11:00 A.M., London time, on that Interest Determination Date. |
| (b) | If the rate referred to in subparagraph (a) above does not appear on the LIBOR Page by 11:00 A.M., London time, on such Interest Determination Date, the Three-Month LIBOR Rate will be determined as follows: |
| (1) | Except as provided in clause (2) below, the calculation agent will select (after consultation with Albemarle) four major reference banks (which may include one or more of the initial purchasers or their affiliates) in the London interbank market and will request the principal London office of each of those four selected banks to provide the calculation agent with such bank’s quotation of the rate at which three-month U.S. dollar deposits, commencing on the second London business day immediately following such Interest Determination Date, are offered to prime banks in the London interbank market at approximately 11:00 A.M., London time, on such Interest Determination Date and in a principal amount of not less than $1,000,000 that is representative for a single transaction in such market at such time. |
| a. | If at least two such quotations are provided, then the Three-Month LIBOR Rate for such Interest Determination Date will be the arithmetic mean of such quotations. |
| b. | If fewer than two quotations are provided, then the Three-Month LIBOR Rate for such Interest Determination Date will be the arithmetic mean of the rates quoted as of approximately 11:00 A.M. in the City of New York on such Interest Determination Date by three major banks (which may include one or more of the initial purchasers or their affiliates) in the City of New York selected by the calculation agent (after consultation with Albemarle) for three-month U.S. dollar loans, commencing on the second London business day immediately following such Interest Determination Date, and in a principal amount of not less than $1,000,000 that is representative for a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the calculation agent are not quoting as mentioned in this sentence, the rate of interest in effect for the applicable period will be the same as the interest rate in effect on such Interest Determination Date. |
| (2) | Notwithstanding clause (1) above, if Albemarle or its Designee (as defined below) determine on or prior to the relevant Interest Determination Date that a Benchmark Transition Event and its related Benchmark Replacement Date (each, as defined herein) have occurred with respect to the Three-Month LIBOR Rate, then the provisions set forth below under “Effect of Benchmark Transition Event”, which is referred to as the benchmark transition provisions, will thereafter apply to all determinations of the Floating Interest Rate. In accordance with the benchmark transition provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the amount of interest that will be payable for each interest period will be an annual rate equal to the sum of the Benchmark Replacement (as defined herein) and the margin specified in the first paragraph under “—Interest”. |
Effect of Benchmark Transition Event
Benchmark replacement. If Albemarle (or its Designee, which may be the calculation agent only if the calculation agent consents to such appointment in its sole discretion with no liability therefor, a successor calculation agent, or such other designee of ours (any of such entities, a “Designee”)) determine that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the 2022 Exchange Notes in respect of such determination on such date and all determinations on all subsequent dates.
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Benchmark replacement conforming changes. In connection with the implementation of a Benchmark Replacement, Albemarle (or its Designee) will have the right to make Benchmark Replacement Conforming Changes from time to time.
Decisions and determinations. Any determination, decision or election that may be made by Albemarle (or its Designee) pursuant to this Section titled “Effect of Benchmark Transition Event,” including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error, will be made in Albemarle’s (or its Designee’s) sole discretion, and, notwithstanding anything to the contrary in the documentation relating to the 2022 Exchange Notes, shall become effective without consent from the holders of the 2022 Exchange Notes or any other party.
Certain defined terms. As used in this Section titled “Effect of Benchmark Transition Event”:
“Benchmark” means, initially, the Three-Month LIBOR Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Three-Month LIBOR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the Interpolated Benchmark with respect to the then-current Benchmark, plus the Benchmark Replacement Adjustment for such Benchmark; provided that if Albemarle (or its Designee) cannot determine the Interpolated Benchmark as of the Benchmark Replacement Date, then “Benchmark Replacement” means the first alternative set forth in the order below that can be determined by Albemarle (or its Designee) as of the Benchmark Replacement Date:
| (1) | the sum of: (a) Term SOFR and (b) the Benchmark Replacement Adjustment; |
| (2) | the sum of: (a) Compounded SOFR and (b) the Benchmark Replacement Adjustment; |
| (3) | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment; |
| (4) | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; |
| (5) | the sum of: (a) the alternate rate of interest that has been selected by Albemarle (or its Designee) as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated 2022 Exchange Notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by Albemarle (or its Designee) as of the Benchmark Replacement Date:
| (1) | the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
| (2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; |
| (3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by Albemarle (or its Designee) giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated 2022 Exchange Notes at such time. |
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Interest Period”, timing and frequency of determining rates and making payments of interest, rounding of amounts or tenors, and other administrative matters) that Albemarle (or its Designee) decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if Albemarle (or its Designee) decide that adoption of any portion of such market practice is not administratively feasible or
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Albemarle (or its Designee) determine that no market practice for use of the Benchmark Replacement exists, in such other manner as Albemarle (or its Designee) determine is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
| (1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or |
| (2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
| (1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; |
| (2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or |
| (3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate being established by Albemarle (or its Designee) in accordance with:
| (1) | the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that: |
| (2) | if, and to the extent that, Albemarle (or its Designee) determine that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that have been selected by Albemarle (or its Designee) giving due consideration to any industry-accepted market practice for U.S. dollar denominated 2022 Exchange Notes at such time. |
For the avoidance of doubt, the calculation of Compounded SOFR shall exclude the Benchmark Replacement Adjustment and the margin specified in the first paragraph under “—Interest.”
“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Interpolated Benchmark” with respect to the Benchmark means the rate determined for the Corresponding Tenor by interpolating on a linear basis between: (1) the Benchmark for the longest period (for which the Benchmark is
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available) that is shorter than the Corresponding Tenor and (2) the Benchmark for the shortest period (for which the Benchmark is available) that is longer than the Corresponding Tenor.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“Reference Time” with respect to any determination of the Benchmark means (1) if the Benchmark is the Three-Month LIBOR Rate, 11:00 A.M. (London time) on the day that is two London banking days preceding the date of such determination, and (2) if the Benchmark is not the Three-Month LIBOR Rate, the time determined by Albemarle (or its Designee) in accordance with the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.
“Term SOFR” means the forward-looking term rate for the applicable Corresponding Tenor based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
Ranking
The 2022 Exchange Notes will be:
| • | Albemarle’s senior unsecured indebtedness; |
| • | effectively subordinated to Albemarle’s secured indebtedness to the extent of the value of the assets securing such indebtedness; |
| • | structurally subordinated to any indebtedness of any of Albemarle’s subsidiaries; |
| • | pari passu with Albemarle’s existing and future senior unsecured indebtedness; and |
| • | senior in right of payment to Albemarle’s existing and future subordinated indebtedness. |
Optional Redemption
The 2022 Exchange Notes will not be subject to redemption at Albemarle’s option at any time prior to November 15, 2020 (two years prior to the maturity date, the “2022 Exchange Notes Par Call Date”).
At any time, or from time to time, on or after the 2022 Exchange Notes Par Call Date, the 2022 Exchange Notes will be redeemable as a whole or in part, at Albemarle’s option, at a redemption price equal to 100% of the principal amount of the Exchange Notes to be redeemed plus accrued and unpaid interest on the Exchange Notes to be redeemed to, but excluding, the date of redemption.
2029 Exchange Notes
The 2029 Exchange Notes will be initially issued in an aggregate principal amount of $300,000,000 and will mature on November 15, 2029. The 2029 Exchange Notes will be direct unsecured obligations of Wodgina, and on the issue date will be fully and unconditionally guaranteed on an unsubordinated unsecured basis by Albemarle.
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Interest
The 2029 Exchange Notes will bear interest at the applicable rate per annum shown on the cover of this prospectus from (a) from the later of (i) the last interest payment date on which interest was paid on the 2029 Restricted Notes or (ii) if the 2029 Restricted Notes are surrendered for exchange on a date in a period that includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date, payable semi-annually on May 15 and November 15, to the persons in whose names the Exchange Notes are registered at the close of business on the next preceding May 1 or November 1, respectively. Interest on the 2029 Exchange Notes will be computed on the basis of a 360-day year of twelve 30-day months.
Guarantee
Wodgina’s obligations under the 2029 Exchange Notes will be fully and unconditionally guaranteed on an unsubordinated unsecured basis by Albemarle. The 2029 Exchange Note Guarantee will rank equally in right of payment with all existing and future liabilities of Albemarle that are not subordinated. The 2029 Exchange Note Guarantee will effectively rank subordinated to any secured indebtedness of Albemarle to the extent of the value of the assets securing such indebtedness. Under the terms of the 2029 Exchange Note Guarantee, holders of the 2029 Exchange Notes will not be required to exercise their remedies against Wodgina before they proceed directly against Albemarle.
The 2029 Exchange Note Guarantee of Albemarle will be released if Wodgina exercises its legal defeasance or its covenant defeasance option as described under “Description of the Exchange Notes—Defeasance” below or if its obligations under the indenture are discharged as described under “Description of the Exchange Notes—Satisfaction and Discharge” below. Once released in accordance with its terms, the 2029 Exchange Note Guarantee will not be required to be reinstated for any reason. At Wodgina’s written instruction, the trustee will execute and deliver any documents, instructions or instruments evidencing any release of the 2029 Exchange Note Guarantee.
The indenture will provide that the obligations of Albemarle under its 2029 Exchange Note Guarantee will be limited to the maximum amount that, after giving effect to all other contingent and fixed liabilities of Albemarle, would cause the 2029 Exchange Note Guarantee of Albemarle not to constitute a fraudulent conveyance or fraudulent transfer under any applicable law; provided, however, there is some doubt as to whether this limitation will be effective to prevent the 2029 Exchange Note Guarantee from constituting a fraudulent conveyance.
Ranking
The 2029 Exchange Notes will be:
| • | Wodgina’s senior unsecured indebtedness, |
| • | effectively subordinated to Wodgina’s secured indebtedness to the extent of the value of the assets securing such indebtedness, |
| • | structurally subordinated to any indebtedness of any of Wodgina’s subsidiaries, |
| • | pari passu with Wodgina’s existing and future senior unsecured indebtedness, and |
| • | senior in right of payment to Wodgina’s existing and future subordinated indebtedness. |
Optional Redemption
At any time, or from time to time, prior to August 15, 2029 (three months prior to the maturity date, the “fixed rate note par call date”) Wodgina may redeem the 2029 Exchange Notes in whole or in part, at its option, at a redemption price equal to the greater of (1) 100% of the principal amount of the Exchange Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Exchange Notes to be redeemed (exclusive of interest accrued to the date of redemption) from the redemption date through the par call date of the Exchange Notes being redeemed (assuming the Exchange Notes matured on the par call date), in each case discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points.
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At any time, or from time to time, on or after the fixed rate note par call date, the 2029 Exchange Notes will be redeemable as a whole or in part, at Wodgina’s option, at a redemption price equal to 100% of the principal amount of the Exchange Notes to be redeemed plus accrued and unpaid interest on the Exchange Notes to be redeemed to, but excluding, the date of redemption.
In each case, Wodgina will pay accrued and unpaid interest on the principal amount being redeemed to, but excluding, the date of redemption.
Certain Other Terms
For purposes of this section:
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Exchange Notes to be redeemed (assuming the Exchange Notes matured on the applicable par call date) 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 a comparable maturity to the remaining term of such Exchange Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker 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 Wodgina.
“Primary Treasury Dealer” means a primary U.S. Government securities dealer in the United States and such dealer’s affiliates.
“Reference Treasury Dealer” means each of (1) BofA Securities, Inc. and J.P. Morgan Securities LLC or their respective affiliates which are Primary Treasury Dealers, and their respective successors and (2) two other Primary Treasury Dealers appointed by us; provided, however, that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, Wodgina shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, 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 Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per year equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) 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.
Additional Amounts
All payments required to be made by Wodgina under or with respect to the 2029 Exchange Notes (Wodgina or any successor thereof making such payment, the “Payor”), will be made free and clear of and without withholding or deduction for or on account of, any taxes imposed or levied by or on behalf of any authority or agency having power to tax within any jurisdiction in which any Payor is incorporated, organized or otherwise resident for tax purposes, or engaged in business for tax purposes, or any jurisdiction from or through which payment is made by or on behalf of such Payor (each a “Relevant Taxing Jurisdiction”), unless such Payor is required to withhold or deduct such taxes by law or regulation.
If a Payor is so required to withhold or deduct any amount for or on account of taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction from any payment made under or with respect to the 2029 Exchange Notes or the 2029 Exchange Note Guarantee, as applicable, such Payor will be required to pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by any holder (including Additional Amounts) after such withholding or deduction will not be less than the amount the holder or beneficial owner would have received if such taxes had not been withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:
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(a) any taxes that would not have been (or would not be required to be) so imposed, withheld, deducted or levied but for the existence of any present or former connection between the relevant holder or beneficial owner (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, or possessor of power over, the relevant holder or beneficial owner, if the relevant holder or beneficial owner is an estate, nominee, trust, partnership, company or corporation) and the Relevant Taxing Jurisdiction, including, without limitation, such holder or beneficial owner being or having been a citizen, domiciliary, national resident thereof, or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein (other than any connection arising solely from the acquisition or holding of any 2029 Exchange Notes, the receipt of any payments in respect of such Exchange Notes or the 2029 Exchange Note Guarantee or the exercise or enforcement of rights under the 2029 Exchange Note Guarantee);
(b) any estate, inheritance, gift, sales, transfer, personal property or similar tax or assessment;
(c) any taxes which are payable other than by withholding or deduction from payments made under or with respect to the 2029 Exchange Notes or the 2029 Exchange Note Guarantee;
(d) any taxes that would not have been (or would not be required to be) imposed, withheld, deducted or levied if such holder or the beneficial owner of any 2029 Exchange Notes or interest therein (i) complied with all reasonable written requests by the Payor (made at a time that would enable the holder or beneficial owner acting reasonably to comply with such request) to provide timely and accurate information or documentation concerning the nationality, residence or identity of such holder or beneficial owner or (ii) made any declaration or similar claim or satisfy any certification, information or reporting requirement, which in the case of (i) or (ii), is required or imposed by a statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of withholding or deduction of, all or part of such taxes;
(e) any taxes imposed or withheld on or with respect to a payment which could have been made without deduction or withholding if the beneficiary of the payment had presented the 2029 Exchange Notes for payment (where presentation is required) within 30 days after the date on which such payment or such 2029 Exchange Notes became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the holder or beneficial owner would have been entitled to Additional Amounts had the 2029 Exchange Notes been presented on any day during the 30-day period);
(f) any taxes imposed on or with respect to any payment made under or with respect to such 2029 Exchange Notes or the 2029 Exchange Note Guarantee to any holder who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the sole beneficial owner of such 2029 Exchange Notes;
(g) any taxes payable under Sections 1471-1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the 2029 Exchange Notes (or any amended or successor version), any regulations or official interpretations thereof, any intergovernmental agreement entered into in connection therewith, or any law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(h) any taxes imposed or levied by reason of any combination of clauses (a) through (g) above.
The Payor will pay any present or future stamp, issue, registration, excise, property, court or documentary taxes, or similar taxes, charges or levies (referred to in this paragraph as “stamp taxes”) and interest, penalties and other reasonable expenses related thereto that arise in or are levied by any Relevant Taxing Jurisdiction on the execution, issuance, delivery, enforcement or registration of the 2029 Exchange Notes, the indenture, the 2029 Exchange Note Guarantee or any other document or instrument in relation thereto (other than on a transfer or assignment of the 2029 Exchange Notes after this offering).
The Payor will make or cause to be made any withholding or deduction required in respect of taxes, and remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction, in accordance with applicable law. Upon request, the Payor will use reasonable efforts to provide, within a reasonable time after the date the payment of any such taxes so deducted or withheld is made, the trustee with official receipts or other documentation evidencing the payment of the taxes so deducted or withheld.
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If any Payor will be obligated to pay Additional Amounts under or with respect to any payment made on the 2029 Exchange Notes, the Payor will deliver to the paying agent with a copy to the trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the 45th day prior to that payment date, in which case the Payor shall notify the paying agent and the trustee promptly thereafter) a certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information reasonably necessary to enable the paying agent to pay Additional Amounts to holders or beneficial owners on the relevant payment date.
Whenever in the indenture or this “Description of the Exchange Notes” there is mentioned, in any context:
(a) the payment of principal;
(b) the payment of interest; or
(c) any other amount payable on or with respect to any of the Exchange Notes,
such reference will be deemed to include payment of Additional Amounts as described under this heading “—Additional Amounts,” to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The obligations described under this heading, “—Additional Amounts,” will survive any termination, defeasance or discharge of the indenture or the 2029 Exchange Note Guarantee and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Payor is incorporated, organized or otherwise resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Optional Redemption for Changes in Withholding Taxes
Wodgina is entitled to redeem the 2029 Exchange Notes, at its option, at any time in whole but not in part, upon not less than 15 nor more than 60 days’ notice to the holders, at a redemption price equal to 100% of the outstanding principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in the event the Payor has become or would become obligated to pay, on the next date on which any amount would be payable with respect to the notes, any Additional Amounts as a result of:
(a) a change in, or an amendment to, the laws (including any regulations or rulings promulgated thereunder) or treaties of any Relevant Taxing Jurisdiction; or
(b) any change in, amendment to, or introduction of any official published position regarding the application, administration or interpretation of such laws (including any regulations or rulings promulgated thereunder and including the decision of any court, governmental agency or tribunal), which change, amendment or introduction is publicly announced or becomes effective on or after the date of the indenture and the Payor cannot avoid such obligation by taking reasonable measures available to it (including making payment through a paying agent located in another jurisdiction), provided that such Payor will not be required to take any measures that would result in the imposition on it of any material legal or regulatory burden or the incurrence by it of any material additional costs, or would otherwise result in any material adverse consequences. The foregoing provisions will apply mutatis mutandis to the laws and official positions of any jurisdiction in which any successor permitted under “—Certain Covenants—Consolidation, Merger and Sale of Assets” is incorporated, organized or otherwise resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein.
Prior to the giving of any notice of redemption described in the preceding paragraph, Wodgina will deliver to the trustee an officer’s certificate to the effect that the Payor cannot avoid its obligation to pay Additional Amounts by taking reasonable measures available to it. Wodgina will also deliver to the trustee an opinion of counsel of recognized standing to the effect that the Payor would be obligated to pay Additional Amounts as a result of a change, amendment, or introduction described above. Absent manifest error, the trustee will accept such opinion as sufficient evidence of the Payor’s obligations, to pay such Additional Amounts, and it will be conclusive and binding on the holders.
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The Exchange Notes
Each series of Exchange Notes will be issued only in fully registered form in minimum denominations of $2,000 and multiples of $1,000 in excess thereof.
The issuer of each series of Exchange Notes may from time to time without notice to, or the consent of, the holders of such series of Exchange Notes, create and issue additional Exchange Notes of such series under the indenture, equal in rank to the Exchange Notes of such series in all respects (or in all respects except for the payment of interest accruing prior to the issue date of the new Exchange Notes, or except under certain circumstances for the first payment of interest following the issue date of the new Exchange Notes) so that the new Exchange Notes may be consolidated and form a single series with the Exchange Notes and have the same terms as to status, redemption and otherwise as the Exchange Notes of such series issued under this prospectus.
Interest
Interest on the Exchange Notes will be paid by check mailed on an interest payment date other than a maturity date to the persons entitled thereto to the addresses of such holders as they appear in the security register or, at the issuer’s option, by wire transfer to a bank account maintained by the holder. The principal of, premium, if any, and interest on the Exchange Notes, together with interest accrued and unpaid thereon, due on the applicable maturity date will be paid in immediately available funds upon surrender of such Exchange Notes at the corporate trust office of the trustee in The City of New York, or, at the issuer’s option, by wire transfer of immediately available funds to an account with a bank designated at least 15 calendar days prior to the maturity date by the applicable registered holder, provided the particular bank has appropriate facilities to receive these payments and the particular note is presented and surrendered at the office or agency maintained by us for this purpose in the Borough of Manhattan, The City of New York, in time for the trustee to make these payments in accordance with its normal procedures. Notwithstanding the foregoing, if Exchange Notes are held in the form of global securities, all payments will be made in accordance with the applicable procedures of the depositary.
Exchange and Transfer
For each series of Exchange Notes, a global security will be issued in denominations equal to the aggregate principal amount of outstanding Exchange Notes of such series represented by that global security.
You may have your Exchange Notes broken into more notes of smaller denominations or combined into fewer notes of larger denominations, as long as the total principal amount is not changed. This is called an exchange.
You may exchange or transfer Exchange Notes at the office of the security registrar. The security registrar acts as the issuers’ agent for registering notes in the names of holders and transferring notes. The issuers may change this appointment to another entity or perform the service ourselves. The entity performing the role of maintaining the list of registered holders is called the security registrar and the initial security registrar is the trustee. It will also register transfers of the notes. The security register for the notes will be maintained at an office or agency of the trustee in the United States.
You will not be required to pay a service charge to transfer or exchange notes, but you may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The transfer or exchange will only be made if the security registrar is satisfied with your proof of ownership.
The issuers may cancel the designation of any particular transfer agent. The issuers may also approve a change in the office through which any transfer agent acts.
Payments on the Notes
Payments of the principal and premium, if any, in respect of Exchange Notes of a series that are not global securities will be made upon the surrender of the Exchange Notes of such series at the office or agency of the issuers maintained for that purpose in the City of New York designated from time to time by the trustee and payments of interest will be made by check mailed to holders of the Exchange Notes of such series at their addresses set forth in the security register; provided, however, that payments of interest will be made by wire transfer if a holder of at least $1.0 million in principal amount of Exchange Notes has given wire transfer instructions to the trustee at least five business days prior to the applicable interest payment date. All payments of Exchange Notes of a series that are represented by global securities will be made by the transfer of immediately available funds to the nominee of the depositary for the Exchange Notes of such series.
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Optional Redemption
Notice of redemption will be sent at least 15 but not more than 60 days before the redemption date to each holder of record of the Exchange Notes to be redeemed at its registered address. If less than all of the Exchange Notes are to be redeemed at any time, the trustee will select Exchange Notes to be redeemed on a pro rata basis, by lot, or by any other method the trustee deems fair and appropriate (or in accordance with applicable DTC procedures). The notice of redemption for the Exchange Notes will state, among other things, the amount of the Exchange Notes to be redeemed, the redemption date, the manner in which the redemption price will be calculated and the place or places that payment will be made upon presentation and surrender of Exchange Notes to be redeemed.
Unless the applicable issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Exchange Notes or portions thereof called for redemption.
The applicable issuer will pay interest to a person other than the holder of record on the record date if such issuer elects to redeem the Exchange Notes of a series on a date that is after a record date but on or prior to the corresponding interest payment date. In this instance, such issuer will pay accrued interest on the Exchange Notes being redeemed to, but not including, the redemption date to the same person to whom such issuer will pay the principal of those Exchange Notes.
Certain Covenants
General
The indenture contains certain covenants for the benefit of the holders of the Exchange Notes of each series, including, among other things, a covenant to maintain each issuer’s corporate existence. In addition, the indenture contains the covenants described in the two succeeding subsections. Capitalized terms used in the following summary have the meanings specified in the indenture, unless otherwise defined below.
Limitation on Liens and Other Encumbrances
Albemarle has agreed that neither it nor any Restricted Subsidiary (as defined below) will incur, issue, assume or guarantee any Indebtedness secured by any Lien (as defined below) upon any Principal Property (as defined below) or shares of capital stock or indebtedness of any Restricted Subsidiary without securing the Exchange Notes equally and ratably with all other Indebtedness secured by the Lien. This covenant has exceptions, which permit:
| (1) | Liens existing on the date of the indenture; |
| (2) | Liens existing on any Principal Property owned or leased by a corporation at the time it becomes a Restricted Subsidiary; |
| (3) | Liens existing on any Principal Property at the time of its acquisition by Albemarle or a Restricted Subsidiary, which Lien was not incurred in anticipation of such acquisition and was outstanding prior to such acquisition; |
| (4) | Liens to secure any Indebtedness incurred prior to, at the time of, or within 12 months after the acquisition of any Principal Property for the purpose of financing all or any part of the purchase price thereof and any Lien to the extent that it secures Indebtedness which is in excess of such purchase price and for the payment of which recourse may be had only against such Principal Property; |
| (5) | Liens to secure any Indebtedness incurred prior to, at the time of, or within 12 months after the completion of the construction and commencement of commercial operation, alteration, repair or improvement of any Principal Property for the purpose of financing all or any part of the cost thereof and any Lien to the extent that it secures Indebtedness which is in excess of that cost and for the payment of which recourse may be had only against the Principal Property; |
| (6) | Liens in favor of Albemarle or any of the Restricted Subsidiaries; |
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| (7) | Liens in favor of the United States or any state or any other country, or any agency, instrumentality or political subdivision of any of the foregoing, to secure partial, progress, advance or other payments or performance pursuant to the provisions of any contract or statute, or to secure any Indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Liens; |
| (8) | Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other similar Liens arising in the ordinary course of business, or federal, state or municipal government Liens arising out of contracts for the sale of products or services by Albemarle or any Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing; |
| (9) | Pledges or deposits under workmen’s compensation laws or similar legislation and Liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of money) or leases to which Albemarle or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of Albemarle or any Restricted Subsidiary, or deposits in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or deposits of cash or obligations of the United States to secure surety, appeal or customs bonds to which Albemarle or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to, interpleader proceedings; |
| (10) | Liens in connection with legal proceedings being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against Albemarle or any Restricted Subsidiary, which judgments or awards are being appealed, and Liens incurred for the purpose of obtaining a stay order or discharge during a legal proceeding to which Albemarle or any Restricted Subsidiary is a party; |
| (11) | Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings; |
| (12) | Liens consisting of easements, rights of way and restrictions on the use of real property, and defects in title, which do not (a) interfere materially with the use of the property covered thereby in the ordinary course of Albemarle’s or any Restricted Subsidiary’s business or (b) materially detract from the property’s value in Albemarle’s opinion; and |
| (13) | Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing clauses (2) through (12) above, so long as the principal amount of the Indebtedness secured thereby does not exceed the principal amount of Indebtedness so secured at the time of the extension, renewal or replacement (except that, where an additional principal amount of Indebtedness is incurred to provide funds for the completion of a specific project, the additional principal amount, and any related financing costs, may be secured by the Lien as well) and the Lien is limited to the same property subject to the Lien so extended, renewed or replaced, plus improvements on the property. |
Notwithstanding the foregoing, Albemarle and any one or more of the Restricted Subsidiaries may issue, assume or guarantee Indebtedness secured by a Lien that would otherwise be subject to the foregoing restrictions if at the time of incurrence (the “Incurrence Time”), the amount equal to the sum of:
| • | the aggregate amount of the Indebtedness, plus |
| • | all of Albemarle’s other Indebtedness and the Indebtedness of the Restricted Subsidiaries secured by a Lien that would otherwise be subject to the foregoing restrictions (not including Indebtedness permitted to be secured under the foregoing restrictions), plus |
| • | the aggregate Attributable Debt (as defined below) determined as of the Incurrence Time of Sale and Leaseback Transactions (as defined below), other than Sale and Leaseback Transactions permitted as described under “—Restrictions on Sale and Leaseback Transactions” below entered into after the date of the indenture and in existence at the Incurrence Time, less |
| • | the aggregate amount of proceeds of such Sale and Leaseback Transactions that have been applied as described under “—Restrictions on Sale and Leaseback Transactions” below, |
does not exceed 15% of Albemarle’s Consolidated Net Tangible Assets (as defined below).
“Attributable Debt” means, in respect of a Sale and Leaseback Transaction and as of any particular time, the present value of the obligation of the lessee thereunder for net rental payments during the remaining term of such lease,
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including any extensions. The present value of the obligation of the lessee is discounted at the rate of interest implicit in the terms of the lease involved in the Sale and Leaseback Transaction, as determined in good faith by Albemarle. Net rental payments exclude any amounts required to be paid by the lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, services, insurance, taxes, assessments, water rates or similar charges or any amounts required to be paid by the lessee, subject to monetary inflation or the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges.
“Consolidated Net Tangible Assets” means the aggregate amount of assets after deducting the following:
| (a) | applicable reserves and other properly deductible items; |
| (b) | all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles; and |
| (c) | all current liabilities, as reflected in the latest consolidated balance sheet contained in Albemarle’s most recent annual report on Form 10-K or quarterly report on Form 10-Q filed pursuant to the Exchange Act prior to the time as of which “Consolidated Net Tangible Assets” will be determined. |
“Indebtedness” means, with respect to any Person on any date of determination, without duplication:
| (a) | the principal and premium (if any) in respect of indebtedness of such Person for borrowed money; |
| (b) | the principal and premium (if any) in respect of all obligations of such Person in the form of or evidenced by notes, debentures, bonds or other similar instruments, including obligations incurred in connection with its acquisition of property, assets or businesses; |
| (c) | capitalized lease obligations of such Person; |
| (d) | all obligations of such Person under letters of credit, bankers’ acceptances or similar facilities issued for its account; |
| (e) | all obligations of such Person issued or assumed in the form of a deferred purchase price of property or services, including master lease transactions pursuant to which such Person or its subsidiaries have agreed to be treated as owner of the subject property for federal income tax purposes (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); |
| (f) | all payment obligations of such Person under swaps and other hedging arrangements; |
| (g) | all obligations of such Person pursuant to its guarantee or assumption of certain of another entity’s obligations and all dividend obligations guaranteed or assumed by such Person; |
| (h) | all obligations to satisfy the expenses and fees of the trustee under the indenture; |
| (i) | all obligations pursuant to all amendments, modifications, renewals, extensions, refinancings, replacements and refundings by such Person of certain of the obligations described above; and |
| (j) | guarantees of any of the foregoing, |
provided, however, that Indebtedness shall not include any indebtedness of a subsidiary to Albemarle or another subsidiary.
“Lien” means any mortgage, lien, pledge, charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), security interest or other encumbrance.
“Principal Property” means all real and tangible personal property owned or leased by Albemarle or any Restricted Subsidiary constituting a part of any manufacturing or processing plant or warehouse located within the United States, exclusive of (1) motor vehicles and other rolling stock, (2) office furnishings and equipment, and information and electronic data processing equipment, (3) any property financed through the issuance of tax-exempt industrial development bonds, (4) any real property held for development or sale, or (5) any property which in the opinion of Albemarle’s board of directors as evidenced by a resolution of the board of directors is not of material importance to the total business conducted by Albemarle and its Restricted Subsidiaries as an entirety.
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“Restricted Subsidiary” means any of Albemarle’s subsidiaries (a) substantially all of whose property is located within the United States and (b) which owns a Principal Property or in which Albemarle’s investment exceeds 1% of the aggregate amount of assets included on Albemarle’s consolidated balance sheet as of the end of the last fiscal quarter for which financial information is available.
“Sale and Leaseback Transaction” means any arrangement involving any bank, insurance company, or other lender or investor (in each case that is not Albemarle or an affiliate of Albemarle) or to which any such lender or investor is a party that provides for the lease by Albemarle or one of its Restricted Subsidiaries for a period, including renewals, in excess of three years of any Principal Property which has been or is to be sold or transferred by Albemarle or any Restricted Subsidiary to the lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor on the security of the Principal Property.
Restrictions on Sale and Leaseback Transactions
Albemarle has agreed not to, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless:
| (1) | Albemarle or the Restricted Subsidiary would, at the time of entering into the arrangement, be entitled, without equally and ratably securing the Exchange Notes of each series then outstanding, to incur, issue, assume or guarantee Indebtedness secured by a lien on the property, under the provisions described in clauses (2) through (13) under the caption “—Limitation on Liens and Other Encumbrances” above; or |
| (2) | Albemarle, within 180 days after the sale or transfer, applies to the retirement of its Funded Debt an amount equal to the greater of: |
| (a) | the net proceeds of the sale of the Principal Property sold and leased back in connection with the arrangement; or |
| (b) | the fair market value of the Principal Property so sold and leased back at the time of entering into such arrangement. |
Notwithstanding the foregoing, Albemarle and its Restricted Subsidiaries, or any of them, may enter into a Sale and Leaseback Transaction that would otherwise be prohibited as set forth above, if either:
| (1) | such transaction involves the transfer of property to a governmental body, authority or corporation, such as a development authority, and is entered into primarily for the purpose of obtaining economic incentives and does not involve a third-party lender or investor; or |
| (2) | at the time of and giving effect to the transaction, the amount equal to the sum of: |
| • | the aggregate amount of the Attributable Debt in respect of all Sale and Leaseback Transactions existing at the time that could not have been entered into except in reliance on this paragraph, plus |
| • | the aggregate amount of outstanding Indebtedness secured by Liens in reliance on the second paragraph of “—Limitation on Liens and Other Encumbrances” |
does not at the time exceed 15% of Albemarle’s Consolidated Net Tangible Assets.
“Funded Debt” means: (a) all Indebtedness maturing one year or more from the date of its creation, (b) all Indebtedness directly or indirectly renewable or extendable, at the option of the debtor, by its terms or by the terms of the instrument or agreement relating thereto, to a date one year or more from the date of its creation, and (c) all Indebtedness under a revolving credit or similar agreement obligating the lender or lenders to extend credit over a period of one year or more.
Except for the limitations on Liens and other encumbrances and Sale and Leaseback Transactions described above, each of which may not apply to subordinated debt securities, the indenture and the Exchange Notes do not contain any covenants or other provisions designed to afford holders of the Exchange Notes protection in the event of a highly leveraged transaction involving Albemarle.
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Consolidation, Merger and Sale of Assets
The issuers are generally permitted to consolidate or merge with another company. The issuers are also permitted to sell or lease all or substantially all of their properties and assets to another company. However, an issuer may not take any of these actions unless:
| • | where such issuer merges out of existence or sells or leases all or substantially all its assets other than to Albemarle, the other company must be (1) in the case of Albemarle, a corporation organized and validly existing under the laws of a state of the United States or the District of Columbia or under federal law and (2) in the case of Wodgina, a corporation or proprietary limited company organized and validly existing under the laws of Australia or any state thereof, and in each case it must expressly assume all their obligations under the indenture and the Exchange Notes; |
| • | immediately after giving effect to the merger, sale of assets or other transaction, no default or event of default exists; |
| • | if, as a result of such consolidation or merger, or such sale or lease of assets, Albemarle’s or any Restricted Subsidiary’s properties or assets would become subject to a Lien, then Albemarle and such Restricted Subsidiary must comply with the covenants in the indenture regarding Liens described above in “—Certain Covenants—Limitation on Liens and Other Encumbrances”; and |
| • | certain other conditions are satisfied. |
For the purposes of this provision, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more subsidiaries of an issuer, which properties and assets, if held by such issuer instead of such subsidiaries, would constitute all or substantially all of the properties and assets of such issuer on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of such issuer.
The indenture’s provisions regarding our consolidation, merger and sale or lease of assets, as described above, include a phrase relating to the conveyance, transfer or lease of “all or substantially all” of our properties and assets. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise, established definition of the phrase under applicable law. Accordingly, the applicability of the foregoing provisions in the case of a sale of such assets or properties may be uncertain.
Offer to Repurchase Upon Change of Control Triggering Event
Upon the occurrence of a Change of Control Triggering Event with respect to any series of the Exchange Notes (unless the applicable issuer has exercised its right to redeem the Exchange Notes of such series by giving irrevocable notice to the trustee in accordance with the indenture), each holder of Exchange Notes of such series will have the right to require the issuer of such series of Exchange Notes to purchase all or a portion of such holder’s Exchange Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, up to but not including the date of purchase (the “Change of Control Payment”).
Unless the applicable issuer has exercised its right to redeem the Exchange Notes of such series, within 30 days following the date upon which the Change of Control Triggering Event occurs with respect to a series of Exchange Notes or, at the option of the issuer of the Exchange Notes of such series, prior to any Change of Control but after the public announcement of the pending Change of Control, the applicable issuer will be required to send a notice to each holder of Exchange Notes of the applicable series to their addresses as set forth in the register, with a copy to the trustee, which notice will govern the terms of the Change of Control Offer. Such notice will state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is sent, other than as may be required by law (the “Change of Control Payment Date”). The notice, if sent prior to the date of consummation of the Change of Control, will state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
On the Change of Control Payment Date, each issuer will, to the extent lawful:
| • | accept or cause a third party to accept for payment all Exchange Notes or portions of Exchange Notes of the applicable series properly tendered pursuant to the Change of Control Offer; |
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| • | deposit or cause a third party to deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Exchange Notes or portions of Exchange Notes of the applicable series properly tendered; and |
| • | deliver or cause to be delivered to the trustee the Exchange Notes of the applicable series properly accepted together with an officer’s certificate stating the aggregate principal amount of Exchange Notes or portions of Exchange Notes of the applicable series being repurchased. |
Neither issuer will be required to make a Change of Control Offer with respect to the Exchange Notes of the applicable series if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by such issuer and such third party purchases all the Exchange Notes of the applicable series properly tendered and not withdrawn under its offer. In addition, an issuer will not repurchase any Exchange Notes of the applicable series if there has occurred and is continuing on the Change of Control Payment Date an event of default under the indenture with respect to the Exchange Notes of such series, other than a default in the payment of the Change of Control Payment on the Change of Control Payment Date with respect to the Exchange Notes of such series.
The issuers must comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Exchange Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Exchange Notes, the issuers will be required to comply with those securities laws and regulations and will not be deemed to have breached the issuers’ respective obligations under the Change of Control Offer provisions of the Exchange Notes by virtue of any such conflict.
For purposes of the foregoing discussion of a Change of Control Offer, the following definitions are applicable:
“Change of Control” means the occurrence of any of the following after the date of issuance of the Exchange Notes:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of Albemarle’s assets and the assets of its subsidiaries taken as a whole to any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) other than to Albemarle or one of its subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) (other than Albemarle or one of its subsidiaries) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Albemarle’s Voting Stock representing a majority of the voting power of Albemarle’s outstanding Voting Stock;
(3) Albemarle consolidates with, or merge with or into, any Person, or any Person consolidates with, or merges with or into, Albemarle, in any such event pursuant to a transaction in which any of Albemarle’s outstanding Voting Stock or Voting Stock of such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where Albemarle’s Voting Stock outstanding immediately prior to such transaction constitutes, or is converted into or exchanged for, Voting Stock representing a majority of the voting power of the Voting Stock of the surviving Person immediately after giving effect to such transaction; or
(4) the adoption by Albemarle’s shareholders of a plan relating to its liquidation or dissolution.
Notwithstanding the foregoing, a transaction (or series of related transactions) will not be deemed to involve a Change of Control under clause (2) above if (i) Albemarle becomes a direct or indirect wholly-owned subsidiary of a holding company and (ii)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of Albemarle’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no person (as that term is used in Section 13(d)(3) of the Exchange Act) (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means, with respect to a series of Exchange Notes, (i) the rating of such series of Exchange Notes is lowered by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing on the earlier of (a) the occurrence of a Change of Control and (b) the first public announcement by Albemarle of any Change of Control (or pending Change of Control), and ending 60 days following consummation of such Change of Control (which Trigger Period will be extended following
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consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings change), and (ii) such series of Exchange Notes are rated below Investment Grade by each of the Rating Agencies on any day during the Trigger Period; provided that a Change of Control Triggering Event will not be deemed to have occurred in respect of a particular Change of Control if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the trustee at Albemarle’s or its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control.
Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), and the equivalent investment grade credit rating from any replacement rating agency or rating agencies selected by Albemarle under the circumstances permitting Albemarle to select a replacement rating agency and in the manner for selecting a replacement rating agency, in each case as set forth in the definition of “Rating Agency.”
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Person” means any individual, corporation, partnership, limited liability company, business trust, association, joint-stock company, joint venture, trust, incorporated or unincorporated organization or government or any agency or political subdivision thereof.
“Rating Agency” means each of Moody’s and S&P; provided, that if either Moody’s or S&P ceases to provide rating services to issuers or investors, Albemarle may appoint another “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act as a replacement for such Rating Agency; provided that Albemarle shall give notice of such appointment to the trustee.
“S&P” means Standard & Poor’s Financial Services LLC, a division of S&P Global Inc., and its successors.
“Voting Stock” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of Albemarle’s assets and the assets of its subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise, established definition of the phrase under applicable law. Accordingly, the applicability of the requirement that the applicable issuer offer to repurchase the Exchange Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of Albemarle’s assets and the assets of its subsidiaries taken as a whole to another “person” or “group” (as those terms are used in Section 13(d)(3) of the Exchange Act) may be uncertain.
Sinking Fund
There is no provision for a sinking fund applicable to the Exchange Notes.
Events of Default
The term “event of default” means, with respect to the Exchange Notes of a series, any of the following:
| (a) | default in the payment of the principal of or any premium on the Exchange Notes of that series on its due date; |
| (b) | default in the payment of interest on the Exchange Notes of that series within 30 days of its due date; |
| (c) | Albemarle or Wodgina (only with respect to the 2029 Exchange Notes) fails to perform or remains in breach of any covenant contained in the indenture for the benefit of the Exchange Notes of that series or any other term of the indenture for 60 days after the applicable issuer receives a written notice of default stating Albemarle or Wodgina, as applicable, is in breach and requiring it to be remedied. The notice must be sent by either the trustee or holders of at least 25% of the aggregate principal amount of the outstanding Exchange Notes of the affected series; |
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| (d) | default in the payment of principal when due or an acceleration of Indebtedness of Albemarle, Wodgina (only with respect to the 2029 Exchange Notes), the guarantor, as applicable, or any Significant Subsidiary, for borrowed money where the aggregate principal amount with respect to which the default or acceleration has occurred exceeds $100 million and such acceleration has not been rescinded or annulled or such Indebtedness repaid within a period of 30 days after written notice to the applicable issuer by the trustee or to the applicable issuer and the trustee by the holders of at least 25% in principal amount of all outstanding Exchange Notes of that series; provided that if any such default is cured, waived, rescinded or annulled, then the event of default by reason thereof would be deemed not to have occurred; or |
| (e) | Albemarle, Wodgina (only with respect to the 2029 Exchange Notes) or any Significant Subsidiary files for, or consents to the filing of, bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur. |
If an event of default described in clause (a), (b), (c) or, after notice in accordance with (d), above has occurred and is continuing, holders of 25% in aggregate principal amount of Exchange Notes of such series may declare the principal amount of the outstanding Exchange Notes of such series, and any accrued and unpaid interest through the date of such declaration, to be due and payable immediately; upon certain conditions such declarations may be annulled and past defaults (except for defaults in the payment of principal of, or any premium or interest on the Exchange Notes of such series and in compliance with certain covenants) may be waived by the holders of a majority in aggregate principal amount of the Exchange Notes of such series; and if an event of default described in clause (e) occurs and is continuing, then the principal amount of all Exchange Notes of such series outstanding, together with any accrued interest through the occurrence of such event, shall become and be due and payable immediately, without any declaration or other act by the trustee or any other holder.
“Significant Subsidiary” means any of Albemarle’s subsidiaries that would be a “Significant Subsidiary” of Albemarle within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
Satisfaction and Discharge
An issuer can satisfy its obligations under the outstanding Exchange Notes of the applicable series and the indenture will cease to be of further effect (with limited exceptions) with respect to Exchange Notes of such series if such issuer puts in place the following arrangements for you to be repaid:
| • | either (a) all Exchange Notes of that series have been delivered to the trustee for cancellation or (b) for any Exchange Notes of that series that have not been delivered to the trustee for cancellation, they have become due and payable, or they will become due and payable within one year, or they will be called for redemption within one year under arrangements satisfactory to the trustee, and in the case of (b), such issuer has deposited, or caused to be deposited, in trust with the trustee for your benefit and the benefit of all other holders of that series of Exchange Notes an amount of cash and U.S. government notes or bonds that will generate enough cash (without reinvestment) to make interest, principal, premium and any other payments on that series of Exchange Notes on their due date; |
| • | such issuer has paid or cause to be paid all other amounts payable by such issuer under the indenture relating to that series of Exchange Notes; |
| • | no default or event of default shall have occurred and be continuing on the date of the deposit or shall occur as a result of the deposit and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which such issuer is a party or by which such issuer is bound; |
| • | such issuer has deposited irrevocable instructions to the trustee to apply the deposited money toward the payment of that series of Exchange Notes on their due date; and |
| • | such issuer has delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that the conditions precedent for the satisfaction and discharge of the indenture with respect to that series of Exchange Notes have been complied with. |
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Modification and Waiver
There are three types of changes the issuers can make to the indenture and the Exchange Notes of the applicable series issued under the indenture.
Changes Requiring Your Approval. First, there are changes that cannot be made to the Exchange Notes without the approval of each holder affected thereby. Following is a list of those types of changes:
| • | change the payment date of the principal or any installment of principal or interest on a note; |
| • | reduce any other amounts due on a note; |
| • | reduce the amount of principal due and payable upon acceleration of the maturity of a note following a default; |
| • | change the place or currency of payment on a note; |
| • | impair a holder’s right to institute suit to enforce any payment of any amount due on its note; |
| • | impair any right that the holders may have to exchange or convert the note for or into other securities; |
| • | reduce the percentage in aggregate principal amount of Exchange Notes of any series whose consent is needed to modify or amend the indenture or any supplement thereto; |
| • | reduce the percentage in principal amount of Exchange Notes whose consent is needed to waive the applicable issuer’s compliance with certain provisions of the indenture or any supplement thereto or to waive certain defaults; and |
| • | modify any other aspect of the provisions dealing with modification and waiver of the indenture or any supplement thereto, except to increase any applicable percentage of holders of Exchange Notes required for modification or provide that provisions may not be modified except with the consent of each affected holder. |
Changes Requiring a Majority Vote. The second type of change to the indenture or any supplement thereto and the Exchange Notes is the kind that requires a vote in favor by holders of a majority of the outstanding Exchange Notes affected by the change. Most other changes fall into this category, except for changes noted above as requiring the approval of the holders of each security affected thereby, and, as noted below, waivers and changes not requiring any approval.
The applicable issuer would need a vote by holders of Exchange Notes owning a majority of the principal amount of all series affected by the waiver, to obtain a waiver of certain of the restrictive covenants, including the covenants described above under “—Certain Covenants—Limitation on Liens and Other Encumbrances,” and “—Certain Covenants—Restrictions on Sale and Leaseback Transactions.” The applicable issuer also needs holders of Exchange Notes owning a majority of the principal amount of the relevant affected series to obtain a waiver of any past default with respect to such series, except a payment default listed in the first or second category described above under “—Events of Default.”
The indenture provides that a supplemental indenture that changes or eliminates any covenant or other provision of the indenture that has expressly been included solely for the benefit of one or more particular series of Exchange Notes, or that modifies the rights of the holders of Exchange Notes of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under the indenture of the holders of securities of any other series.
Changes Not Requiring Approval. The third type of change does not require any vote by holders of Exchange Notes. This type is limited to clarifications and certain other changes that would benefit or would not adversely affect holders of the Exchange Notes.
Further Details Concerning Voting. Notes will not be considered outstanding, and therefore will not be eligible to vote, if the applicable issuer has deposited or set aside in trust for holders money for their payment or redemption or if they have been fully defeased, as described under “Defeasance—Legal Defeasance.” Notes owned by the applicable issuer or any of its affiliates will also not be considered outstanding or eligible to vote.
If an issuer determines to set a record date, such issuer will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding Exchange Notes of such series of Exchange Notes that are entitled to vote or take other action under the indenture. In some circumstances, the trustee will be entitled to set a record date for action by holders. If the trustee sets a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding Exchange Notes of that series on the record date and the action voted upon must be effective within 90 days following the record date.
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Indirect holders should consult their banks or brokers for information on how approval may be granted or denied if any issuer seeks to change an indenture or the Exchange Notes or request a waiver.
Defeasance
Legal Defeasance
If there is a change in federal income tax law, as described below, an issuer can legally release itself from any payment or other obligations, with certain limited exceptions, on any series of Exchange Notes, called legal defeasance, if such issuer puts in place the following arrangements for you to be repaid:
| • | such issuer must deposit, or cause to be deposited, in trust for your benefit and the benefit of all other holders of that series of Exchange Notes an amount of cash and U.S. government notes or bonds that will generate enough cash (without reinvestment) to make interest, principal, premium and any other payments on that series of Exchange Notes on their due date; |
| • | such issuer must deliver to the trustee a legal opinion of counsel that is based on and confirms the tax law change described below; |
| • | no event of default or event that with the passage of time or the giving of notice, or both, shall constitute an event of default shall have occurred and be continuing at the time of the deposit described above (other than resulting from the borrowing of funds to be applied to such deposit) on the later of (1) the 91st day after the date of the deposit or (2) the day ending on the day following the expiration of the longest preference period under any bankruptcy law applicable to such issuer in respect of such deposit; |
| • | such deposit and defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which such issuer is a party or by which such issuer is bound; and |
| • | such issuer must comply with certain other conditions. |
There must be a change in current federal income tax law or a U.S. Internal Revenue Service ruling that lets such issuer make the above deposit without causing you to be taxed on the Exchange Notes of such series any differently than if such issuer did not make the deposit and just repaid the Exchange Notes of such series at maturity or redemption.
In the event of legal defeasance, you would have to rely solely on the trust holding the deposited cash and/or U.S. government Exchange Notes or bonds for repayment of the Exchange Notes of the applicable series. You could not look to the issuer for repayment in the unlikely event of any shortfall. Conversely, the trust would most likely be protected from claims of the issuer’s lenders and other creditors if the issuer ever become bankrupt or insolvent.
Covenant Defeasance
Under current federal income tax law, an issuer can make the same type of deposit described above under “— Defeasance—Legal Defeasance” and be released from some of the restrictive covenants in the Exchange Notes of the applicable series. This is called covenant defeasance. In that event, you would lose the protection of those restrictive covenants but would gain the protection of having cash and/or U.S. government notes or bonds set aside in trust to repay the Exchange Notes of such series. In order to achieve covenant defeasance, such issuer must do the following:
| • | such issuer must deposit, or cause to be deposited, in trust for your benefit and the benefit of all other holders of that series of Exchange Notes an amount of cash and U.S. government notes or bonds that will generate enough cash (without reinvestment) to make interest, principal, premium and any other payments on that series of Exchange Notes on their due date; |
| • | such issuer must deliver to the trustee a legal opinion of counsel confirming that under current federal income tax law such issuer may make the above deposit without causing you to be taxed on the Exchange Notes of such series any differently than if such issuer did not make the deposit and just repaid the Exchange Notes of such series at maturity or redemption; |
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| • | no event of default or event that with the passage of time or the giving of notice, or both, shall constitute an event of default shall have occurred and be continuing at the time of the deposit described above (other than resulting from the borrowing of funds to be applied to such deposit) on the later of (1) the 91st day after the date of the deposit or (2) the day ending on the day following the expiration of the longest preference period under any bankruptcy law applicable to such issuer in respect of such deposit; |
| • | such deposit and defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which such issuer is party or by which such issuer is bound; and |
| • | such issuer must comply with certain other conditions. |
If an issuer accomplishes covenant defeasance, the following provisions, among others, of the indenture and the Exchange Notes of the applicable series would no longer apply:
| • | the covenants applicable to such issuer, if any, previously described under “—Certain Covenants—Limitation on Liens and Other Encumbrances” and “—Certain Covenants—Restrictions on Sale and Leaseback Transactions;” |
| • | the condition regarding the treatment of Liens when such issuer merges or engages in similar transactions as described under “—Certain Covenants—Consolidation, Merger and Sale of Assets;” |
| • | the events of default relating to breach of covenants, described under “Events of Default;” and |
| • | any other covenants applicable to the series of Exchange Notes and described in the prospectus. |
If an issuer accomplishes covenant defeasance, you could still look to such issuer for repayment of the Exchange Notes if there were a shortfall in the trust. In fact, if one of the remaining events of default occurs, such as such issuer’s bankruptcy, and the Exchange Notes of such series become immediately due and payable, there may be a shortfall in the trust.
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Upon closing of the exchange offers, each series of the Exchange Notes will be represented by one or more fully registered global securities. Each such global security will be deposited with or on behalf of, DTC and registered in the name of DTC or a nominee thereof. Unless and until it is exchanged in whole or in part for Exchange Notes in definitive form, no global security may be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any such nominee to a successor of DTC or a nominee of such successor. Accountholders in the Euroclear Bank S.A./N.V. or Clearstream Banking, société anonyme clearance systems may hold beneficial interests in the Exchange Notes through the accounts that each of these systems maintain as participants in DTC.
So long as DTC or its nominee is the registered owner of the global securities, DTC or its nominee, as the case may be, will be the sole holder of the Exchange Notes represented thereby for all purposes under the indenture governing the Exchange Notes. Except as otherwise provided in this section, the beneficial owners of the global securities representing the Exchange Notes will not be entitled to receive physical delivery of certificated Exchange Notes and will not be considered the holders thereof for any purpose under the indenture, and the global securities representing the Exchange Notes shall not be exchangeable or transferable. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of DTC and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, in order to exercise any rights of a holder under the indenture. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in certificated form. Such limits and such laws may impair the ability to transfer beneficial interests in the global securities representing the Exchange Notes.
The global securities representing the Exchange Notes are exchangeable for certificated Exchange Notes of like tenor and terms and of differing authorized denominations aggregating a like amount only if:
| • | DTC notifies us that it is unwilling, unable or ineligible to continue as depositary for the global securities and a successor depositary is not appointed by us within 90 days of such notification or of our becoming aware of DTC’s ineligibility; |
| • | there shall have occurred and be continuing an Event of Default under the indenture governing the Exchange Notes with respect to any of the global securities and the outstanding Exchange Notes of the series represented by such global securities shall have become due and payable pursuant to the relevant indenture and the trustee has requested that certificated Exchange Notes be issued; or |
| • | the issuers have decided to discontinue use of book-entry transfers through DTC. DTC has advised us that, under its current practices, it would notify its participants of our request, but would only withdraw beneficial interests from the global securities at the request of its participants. |
Upon any such exchange, the certificated Exchange Notes shall be registered in the names of the beneficial owners of the global securities representing the Exchange Notes of the applicable series as provided by DTC’s relevant participants (as identified by DTC).
The description of the operations and procedures of DTC set forth below are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to change by them from time to time. The issuers do not take any responsibility for these operations or procedures, and investors are urged to contact the relevant system or its participants directly to discuss these matters.
The following is based on information furnished by DTC:
| • | DTC is a limited-purpose trust company organized under the laws of the State of New York, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among participants of securities transactions, such as transfers and |
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| pledges, in deposited securities through electronic computerized book entry changes in participants’ accounts, thereby eliminating the need for physical movement of securities certificates. Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is available to securities brokers and dealers, banks and trust companies that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. |
| • | Persons who are not participants may beneficially own the Exchange Notes held by DTC only through direct participants or indirect participants. Purchases of the Exchange Notes under DTC’s system must be made by or through direct participants, which will receive a credit for such Exchange Notes on DTC’s records. The ownership interest of each actual purchaser of each note represented by a global security (a “Beneficial Owner”) is in turn to be recorded on the direct participants’ and indirect participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the direct participants or indirect participants through which such Beneficial Owner entered into the transaction. Transfers of ownership interests in the global securities representing the Exchange Notes are to be accomplished by entries made on the books of participants acting on behalf of Beneficial Owners. Beneficial Owners of the global securities representing the Exchange Notes will not receive certificated Exchange Notes representing their ownership interests therein, except in the event that use of the book-entry system for such Exchange Notes is discontinued and in certain other limited circumstances. |
| • | Principal, premium, if any, and interest payments on the global securities representing the Exchange Notes will be made to DTC. DTC’s practice is to credit direct participants’ accounts on the applicable payment date in accordance with their respective holdings shown on DTC’s records unless DTC has reason to believe that it will not receive payment on such date. Payments by participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such participant and not of DTC, the trustee or ours, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, premium, if any, and interest to DTC is our and the trustee’s responsibility, disbursement of such payments to direct participants is the responsibility of DTC, and disbursement of such payments to the Beneficial Owners is the responsibility of direct participants and indirect participants. |
| • | DTC may discontinue providing its services as securities depository with respect to the Exchange Notes at any time by giving reasonable notice to us or the trustee. Under such circumstances, in the event that a successor securities depository is not obtained, certificated Exchange Notes are required to be printed and delivered. |
The information in this section concerning DTC and DTC’s system has been obtained from sources that the issuers believe to be reliable, but the issuers take no responsibility for the accuracy thereof. Transfers between participants in DTC will be effected in accordance with DTC’s procedures and will be settled in same-day funds.
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MATERIAL INCOME TAX CONSEQUENCES
Material U.S. Federal Income Tax Consequences
The following discussion summarizes the material U.S. federal income tax consequences of an exchange of Restricted Notes for Exchange Notes pursuant to the exchange offers. This discussion is based upon the provisions of the Internal Revenue Code of 1986, as amended, the Treasury regulations promulgated thereunder, judicial authority and administrative interpretations, all as of the date hereof and all of which are subject to change, possibly with retroactive effect, or different interpretations. This discussion does not address all of the tax considerations that may be relevant to a particular holder in light of the holder’s circumstances, or to certain categories of holders that may be subject to special rules. This summary does not consider any tax consequences arising under U.S. alternative minimum tax law, U.S. federal gift and estate tax law, the Medicare tax on certain net investment income or under the laws of any foreign, state, local or other jurisdiction. Each holder should consult its own independent tax advisor regarding its particular situation and the U.S. federal, state, local and foreign tax consequences of exchanging the Restricted Notes for Exchange Notes and purchasing, holding and disposing of the Exchange Notes, including the consequences of any proposed change in applicable laws.
The exchange of Restricted Notes for Exchange Notes in the exchange offers will not constitute a taxable event for U.S. federal income tax purposes. Consequently, for such purposes, a holder will not recognize gain upon receipt of an Exchange Note in exchange for a Restricted Note in the exchange offers, the holder’s adjusted tax basis (and adjusted issue price) in the Exchange Note received in the exchange offers will be the same as its adjusted tax basis (and adjusted issue price) in the corresponding Restricted Note immediately before the exchange, and the holder’s holding period in the Exchange Note will include its holding period in the Restricted Note.
Material Australian Income Tax Consequences
The following summary describes Australian income tax implications that may be relevant with respect to the acquisition, ownership and disposition of an exchange of Restricted Notes for Exchange Notes pursuant to the exchange offers.
Unless specifically stated otherwise, this section is relevant for noteholders who hold their notes on capital account for Australian income tax purposes. This section does not consider the Australian tax consequences for noteholders:
| • | who hold their notes as trading stock or as revenue assets; |
| • | who may be subject to special tax rules, such as financial institutions, insurance companies, partnerships, (except where expressly stated), tax exempt organizations, trusts (except where expressly stated), superannuation funds (except where expressly stated); or |
| • | who are subject to the taxation of financial arrangements rules in Division 230 of the Income Tax Assessment Act 1997 (Cth) (ITAA97) in relation to gains and losses on financial arrangements. |
The information contained in this section is general in nature and should not be relied on by noteholders as tax advice. This section is not intended to be a complete statement of the taxation law applicable to the particular circumstances of every noteholder. Potential noteholders should obtain their own professional advice on the taxation consequences of purchasing the notes.
The information contained in this section is based on the taxation law at the date of this prospectus. The Australian taxation consequences outlined in this section may alter if there is a change in the taxation law after the date of this document. Each holder should consult its own independent tax advisor regarding its particular situation and the Australian and foreign tax consequences of exchanging the Restricted Notes for Exchange Notes and purchasing, holding and disposing of the Exchange Notes, including the consequences of any proposed change in applicable laws.
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The exchange of Restricted Notes for Exchange Notes in the exchange offers will constitute a taxable event under Australian income tax law. The exchange should not give rise to amounts being subject to Australian income tax on the basis that the terms of the 2029 Exchange Notes largely reflect the terms of the 2029 Restricted Notes.
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Any broker-dealer that holds Restricted Notes that were acquired for its own account as a result of market-making activities or other trading activities (other than Restricted Notes acquired directly from the issuers) may exchange such Restricted Notes pursuant to the exchange offers. Any such broker-dealer may, however, be deemed to be an “underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of Exchange Notes received by such broker-dealer in the exchange offers. Such prospectus delivery requirement may be satisfied by the delivery by such broker-dealer of this prospectus, as it may be amended or supplemented from time to time. The issuers have agreed to use commercially reasonable efforts to keep the registration statement, of which this prospectus forms a part, continuously effective for a period ending on the earlier of (i) 180 days from the date on which the registration statement related to the Exchange Notes is declared effective and (ii) the date on which a broker-dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities. The issuers have also agreed to provide sufficient copies of the latest version of this prospectus to broker-dealers promptly upon request at any time during such 180-day period (or shorter as provided in the foregoing sentence) in order to facilitate such resales.
The issuers will not receive any proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for their own account pursuant to the exchange offers may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers that may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer that resells Exchange Notes that were received by it for its own account pursuant to the exchange offers and any broker or dealer that participates in a distribution of such Exchange Notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit on any such resale of Exchange Notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The issuers have agreed to pay all expenses incident to the exchange offers other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Exchange Notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
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The validity of the Exchange Notes and related 2029 Exchange Note Guarantee offered hereby will be passed upon for Albemarle and Wodgina by Shearman & Sterling LLP, New York, New York and MinterEllison, Australian counsel to Albemarle and Wodgina. Certain legal matters with respect to this offering will be passed upon for us by Hunton Andrews Kurth LLP, Richmond, Virginia.
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2019, have been so incorporated in reliance on the report, which contains an explanatory paragraph on the effectiveness of internal control over financial reporting due to the exclusion of certain elements of the internal control over financial reporting of the MARBL joint venture 60% ownership subsidiary the registrant acquired during 2019, of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
Independent Auditors
The consolidated financial statements of Windfield Holdings Pty Ltd as of December 31, 2019, and for the year then ended, incorporated by reference to the Annual Report on Form 10-K/A, have been audited by KPMG, independent auditors, as stated in their report incorporated herein.
The liability of KPMG in relation to the performance of their professional services to Windfield Holdings Pty Ltd including, without limitation, KPMG’s audits of the financial statements described under “Independent Auditors”, is limited under the Chartered Accountants Australia and New Zealand Professional Standards Scheme (NSW) approved by the New South Wales Professional Standards Council pursuant to the Professional Standards Act of 1994 of the State of New South Wales, including the Treasury Legislation Amendment (Professional Standards) Act 2004 of Australia (the “Accountants Scheme”). The Accountants Scheme limits the civil liability of KPMG to a maximum amount of A$75 million. The Accountants Scheme does not limit liability for breach of trust, fraud or dishonesty.
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Albemarle Corporation
Albemarle Wodgina Pty Ltd
Offers to Exchange
$200,000,000 Outstanding Floating Rate Notes due 2022
for Registered Floating Rate Notes due 2022
and
$300,000,000 Outstanding 3.450% Senior Notes due 2029
for Registered 3.450% Senior Notes due 2029
PROSPECTUS
The date of this prospectus is , 2020
Table of Contents
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 20. | Indemnification of Directors and Officers. |
The following summary applies only to Albemarle Corporation (the “Company”) and is qualified in its entirety by reference to the complete text of the relevant provisions of applicable Virginia law and Albemarle’s organizational documents.
The VSCA permits, and the amended and restated articles of incorporation of the Company require, the Company to indemnify its directors and officers in a variety of circumstances, which may include indemnification for liabilities under the Securities Act. Under the VSCA, a Virginia corporation generally is authorized to indemnify its directors and officers in civil and criminal actions if they acted in good faith and believed their conduct to be in or not opposed to the best interests of the corporation and, in the case of criminal actions, had no reasonable cause to believe that the conduct was unlawful. Unless limited by a corporation’s articles of incorporation, the VSCA requires such indemnification when a director or officer entirely prevails in the defense of any proceeding to which he or she was a party because he or she is or was a director or officer of the corporation, and further provides that a corporation may make any other or further indemnity (including indemnity with respect to a proceeding by or in the right of the corporation), and may make additional provision for advances and reimbursement of expenses, if authorized by its articles of incorporation or a shareholder-adopted bylaw or resolution, except an indemnity against willful misconduct or a knowing violation of the criminal law. The VSCA establishes a statutory limit on liability of officers and directors of a corporation for damages assessed against them in a suit brought by or in the right of the corporation or brought by or on behalf of shareholders of the corporation and authorizes a corporation to specify a lower monetary limit on liability (including the elimination of liability for monetary damages) in the corporation’s articles of incorporation or bylaws; however, the liability of an officer or director shall not be limited if such officer or director engaged in willful misconduct or a knowing violation of the criminal law or of any federal or state securities law.
The Company’s amended and restated articles of incorporation require indemnification of directors and officers with respect to certain liabilities and expenses imposed upon them by reason of having been a director or officer, except in the case of willful misconduct or a knowing violation of the criminal law. In addition, as permitted by the VSCA, the Company’s amended and restated articles of incorporation eliminate the liability for monetary damages of a director or officer in a proceeding brought by or in the right of the corporation or its shareholders. This elimination of liability will not apply if the director or officer engaged in willful misconduct or a knowing violation of criminal law or any federal or state securities law. Article 10 of the VSCA is incorporated herein by reference.
Any underwriting agreement for the securities may contain provisions entitling the Company’s directors, its officers who signed the registration statement and persons controlling the Company to indemnification against certain liabilities that might arise under the Securities Act from certain information furnished to the Company by or on behalf of any such indemnifying party.
| Item 21. | Exhibits and Financial Statement Schedules. |
(a) Exhibits
The exhibit index attached hereto is incorporated herein by reference.
(b) Financial statement schedules:
None.
Item 22. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(c) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
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EXHIBIT INDEX
| * | Filed herewith |
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Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on June 10, 2020.
| ALBEMARLE CORPORATION | ||
| By: | /s/ Karen G. Narwold, Esq. | |
| Karen G. Narwold, Esq. | ||
| Executive Vice President, Chief Administrative Officer, Corporate Secretary | ||
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints the Chief Executive Officer, General Counsel and the Chief Financial Officer, now or hereafter serving, of Albemarle Corporation, and each of them individually, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments to this registration statement (which includes any additional registration statement under Rule 462(b)) together with all schedules and exhibits thereto, (ii) act on, sign and file with the Securities and Exchange Commission any and all exhibits to this registration statement and any and all exhibits and schedules thereto, (iii) act on, sign and file any and all such certificates, applications, registration statements, notices, reports, instruments, agreements and other documents necessary or appropriate in connection with the registration or qualification under foreign and state securities laws of the securities described in this registration statement or any amendment thereto, or to obtain an exemption therefrom, in connection with the offerings described therein and (iv) take any and all such actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, and hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact, any of them or any of his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signatures | Title | Date | ||
| /s/ J. Kent Masters |
Chairman, President and Chief Executive Officer (principal executive officer) | June 10, 2020 | ||
| J. Kent Masters | ||||
| /s/ Scott A. Tozier |
Executive Vice President and Chief Financial Officer (principal financial officer) | June 10, 2020 | ||
| Scott A. Tozier | ||||
| /s/ John C. Barichivich, III |
Vice President, Corporate Controller and Chief Accounting Officer (principal accounting officer) | June 10, 2020 | ||
| John C. Barichivich, III | ||||
| /s/ Mary Lauren Brlas |
Director | June 10, 2020 | ||
| Mary Lauren Brlas | ||||
| /s/ Luther C. Kissam IV |
Director | June 10, 2020 | ||
| Luther C. Kissam IV | ||||
| /s/ Glenda J. Minor |
Director | June 10, 2020 | ||
| Glenda J. Minor | ||||
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| /s/ James J. O’Brien |
Director | June 10, 2020 | ||
| James J. O’Brien | ||||
| /s/ Diarmuid B. O’Connell |
Director | June 10, 2020 | ||
| Diarmuid B. O’Connell | ||||
| /s/ Dean L. Seavers |
Director | June 10, 2020 | ||
| Dean L. Seavers | ||||
| /s/ Gerald A. Steiner |
Director | June 10, 2020 | ||
| Gerald A. Steiner | ||||
| /s/ Holly A. Van Deursen |
Director | June 10, 2020 | ||
| Holly A. Van Deursen | ||||
| /s/ Alejandro Wolff |
Director | June 10, 2020 | ||
| Alejandro Wolff | ||||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in City of Charlotte, State of North Carolina, on June 10, 2020.
| ALBEMARLE WODGINA PTY LTD | ||
| By: | /s/ Karen G. Narwold | |
| Karen G. Narwold | ||
| Director | ||
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints the Chief Executive Officer, General Counsel and the Chief Financial Officer, now or hereafter serving, of Albemarle Corporation, and each of them individually, his or her true and lawful agent, proxy and attorney-in-fact, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments to this registration statement (which includes any additional registration statement under Rule 462(b)) together with all schedules and exhibits thereto, (ii) act on, sign and file with the Securities and Exchange Commission any and all exhibits to this registration statement and any and all exhibits and schedules thereto, (iii) act on, sign and file any and all such certificates, applications, registration statements, notices, reports, instruments, agreements and other documents necessary or appropriate in connection with the registration or qualification under foreign and state securities laws of the securities described in this registration statement or any amendment thereto, or to obtain an exemption therefrom, in connection with the offerings described therein and (iv) take any and all such actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them individually, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, and hereby approving, ratifying and confirming all that such agents, proxies and attorneys-in-fact, any of them or any of his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signatures | Title | Date | ||
| /s/ Karen G. Narwold |
Director | June 10, 2020 | ||
| Karen G. Narwold | ||||
| /s/ Eric Norris |
Director | June 10, 2020 | ||
| Eric Norris | ||||
| /s/ Scott A. Tozier |
Director | June 10, 2020 | ||
| Scott A. Tozier | ||||
| /s/ Mathew Shane Zauner |
Director | June 10, 2020 | ||
| Mathew Shane Zauner | ||||
II-6
Exhibit 3.3
Exhibit 3.4
Constitution
—
Albemarle Wodgina Pty Ltd ACN 630 509 303
—
Constitution of Albemarle Wodgina Pty Ltd ACN 630 509 303
| Preliminary |
6 | |||||
| 1. |
Defined terms | 6 | ||||
| 2. |
Interpretation | 6 | ||||
| 3. |
Replaceable rules | 7 | ||||
| Shares |
7 | |||||
| 4. |
Rights | 7 | ||||
| 5. |
Issue of Shares and other securities | 7 | ||||
| 6. |
Buy-backs | 7 | ||||
| 7. |
Commission and brokerage | 7 | ||||
| 8. |
Trusts not recognised | 7 | ||||
| 9. |
Joint holders | 8 | ||||
| 10. |
Right to certificate | 8 | ||||
| 11. |
Replacement of certificate | 8 | ||||
| 12. |
Variation of class rights | 8 | ||||
| Calls |
9 | |||||
| 13. |
Calls | 9 | ||||
| 14. |
Instalments | 9 | ||||
| 15. |
Interest and expenses on calls | 9 | ||||
| 16. |
Recovery of amounts due | 9 | ||||
| 17. |
Differentiation | 10 | ||||
| 18. |
Payment of calls in advance | 10 | ||||
| Lien and forfeiture |
10 | |||||
| 19. |
Lien | 10 | ||||
| 20. |
Lien sale | 11 | ||||
| 21. |
Forfeiture notice | 11 | ||||
| 22. |
Forfeiture | 11 | ||||
| 23. |
Liability of former Member | 11 | ||||
| 24. |
Disposal of Shares | 12 | ||||
| Transfer of Shares |
12 | |||||
| 25. |
Transfer | 12 | ||||
| 26. |
Transfer procedure | 12 | ||||
| 27. |
Right to refuse registration | 13 | ||||
| 28. |
Closure of Register | 13 | ||||
| Transmission of Shares |
13 | |||||
| 29. |
Title on death | 13 | ||||
| 30. |
Transmission | 13 | ||||
Page 2
| Changes to share capital |
14 | |||||
| 31. |
Dealing with share fractions | 14 | ||||
| General meetings |
14 | |||||
| 32. |
Calling general meeting | 14 | ||||
| 33. |
Notice of general meeting | 14 | ||||
| Proceedings at general meetings |
15 | |||||
| 34. |
Member | 15 | ||||
| 35. |
Quorum | 15 | ||||
| 36. |
Chairperson | 15 | ||||
| 37. |
Adjournment | 16 | ||||
| 38. |
Decision on questions | 16 | ||||
| 39. |
Taking a poll | 16 | ||||
| Votes of Members |
17 | |||||
| 40. |
Entitlement to vote | 17 | ||||
| 41. |
Unpaid calls | 17 | ||||
| 42. |
Joint holders | 17 | ||||
| 43. |
Objections | 17 | ||||
| 44. |
Votes by operation of law | 17 | ||||
| 45. |
Votes by proxy | 17 | ||||
| 46. |
Document appointing proxy | 18 | ||||
| 47. |
Proxy in blank | 18 | ||||
| 48. |
Lodgement of proxy | 18 | ||||
| 49. |
Validity | 19 | ||||
| 50. |
Representatives of corporations | 19 | ||||
| Written resolutions |
19 | |||||
| 51. |
Written resolutions | 19 | ||||
| Appointment and removal of Directors |
20 | |||||
| 52. |
Number of Directors | 20 | ||||
| 53. |
Qualification | 20 | ||||
| 54. |
Appointment and removal of Directors | 20 | ||||
| 55. |
Additional and casual Directors | 20 | ||||
| 56. |
Period of office | 20 | ||||
| 57. |
Vacation of office | 20 | ||||
| Remuneration of Directors |
21 | |||||
| 58. |
Remuneration of non-Executive Directors | 21 | ||||
| 59. |
Remuneration of Executive Directors | 21 | ||||
| 60. |
Other payments to Directors | 21 | ||||
| 61. |
Retirement benefits | 21 | ||||
| Powers and duties of Directors |
21 | |||||
| 62. |
Directors to manage Company | 21 | ||||
| Proceedings of Directors |
22 | |||||
| 63. |
Directors’ meetings | 22 | ||||
Page 3
| 64. |
Decision on questions | 22 | ||||
| 65. |
Directors’ interests | 22 | ||||
| 66. |
Alternate Directors | 23 | ||||
| 67. |
Remaining Directors | 23 | ||||
| 68. |
Chairperson | 24 | ||||
| 69. |
Directors’ committees | 24 | ||||
| 70. |
Written resolutions | 24 | ||||
| 71. |
Validity of acts of Directors | 24 | ||||
| 72. |
Minutes and Registers | 25 | ||||
| Managing Director or Executive Director |
25 | |||||
| 73. |
Appointment of Managing Director or Executive Director | 25 | ||||
| 74. |
Powers | 25 | ||||
| Local management |
25 | |||||
| 75. |
Local management | 25 | ||||
| 76. |
Appointment of attorneys and agents | 26 | ||||
| Secretary |
26 | |||||
| 77. |
Secretary | 26 | ||||
| Seals |
27 | |||||
| 78. |
Common Seal | 27 | ||||
| 79. |
Duplicate Seal | 27 | ||||
| 80. |
Share Seal | 27 | ||||
| Inspection of records |
27 | |||||
| 81. |
Times for inspection | 27 | ||||
| Dividends and reserves |
27 | |||||
| 82. |
Payment of dividends | 27 | ||||
| 83. |
Interest | 28 | ||||
| 84. |
Reserves | 28 | ||||
| 85. |
Dividend entitlement | 28 | ||||
| 86. |
Deductions from dividends | 28 | ||||
| 87. |
Distribution of assets | 28 | ||||
| 88. |
Payment | 29 | ||||
| 89. |
Capitalisation of profits | 29 | ||||
| Notices |
29 | |||||
| 90. |
Service of notices | 29 | ||||
| 91. |
Persons entitled to notice | 30 | ||||
| Audit and accounts |
30 | |||||
| 92. |
Company to keep accounts | 30 | ||||
| Winding up |
31 | |||||
| 93. |
Winding up | 31 | ||||
Page 4
| Payments by the Company |
31 | |||||
| 94. |
Indemnity | 31 | ||||
| Execution of documents |
31 | |||||
| 95. |
Execution of documents | 31 | ||||
Page 5
Preliminary
| 1. | Defined terms |
| 1.1 | In this Constitution: |
Alternate Director means a person appointed as an alternate director under clause 66.
Auditor means the Company’s auditor, if any.
Company means Albemarle Wodgina Pty Ltd which name may be changed) ACN 630 509 303.
Constitution means the constitution of the Company as amended from time to time.
Corporations Act means the Corporations Act 2001 (Cth) as modified or amended from time to time.
Director includes any person occupying the position of director of the Company and, where appropriate, includes an Alternate Director.
Directors means all or some of the Directors acting as a board.
dividend includes bonus.
Executive Director means a person appointed as an executive director under clause 73.
Managing Director means a person appointed as managing director under clause 73.1.
Member means a person whose name is entered for the time being on the Register or any branch register as the holder of one or more Shares.
Register means the register of Members of the Company.
Representative means a person appointed by a Member to act as its representative under clause 50.1 or under section 250D of the Corporations Act.
Seal means the Company’s common seal (if any).
Secretary means any person appointed by the Directors to perform any of the duties of a secretary of the Company.
Shares means shares of the Company.
| 1.2 | In this Constitution, except where the context otherwise requires an expression in a clause of this Constitution has the same meaning as in the Corporations Act. Where the expression has more than one meaning in the Corporations Act and a provision of the Corporations Act deals with the same matter as a clause of this Constitution, that expression has the same meaning as in that provision. |
| 2. | Interpretation |
| 2.1 | In this Constitution, except where the context otherwise requires: |
| (a) | the singular includes the plural and vice versa, and a gender includes other genders; |
| (b) | another grammatical form of a defined word or expression has a corresponding meaning; |
| (c) | a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Constitution, and a reference to this Constitution includes any schedule or annexure; |
| (d) | a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
| (e) | a reference to A$, $A, dollar or $ is to Australian currency; and |
| (f) | the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions. |
| 2.2 | Headings are for ease of reference only and do not affect interpretation. |
Page 6
| 3. | Replaceable rules |
To the extent permitted by law, the replaceable rules in the Corporations Act do not apply to the Company.
Shares
| 4. | Rights |
Subject to this Constitution and to the terms of issue of Shares, all Shares attract the following rights, privileges and conditions:
| (a) | the right to receive notice of and to attend and vote at all general meetings of the Company at one vote per Share; |
| (b) | the right to receive dividends; |
| (c) | in a winding up, the right to participate equally in the distribution of the assets of the Company (both capital and surplus), subject only to any amounts unpaid on the Share. |
| 5. | Issue of Shares and other securities |
| 5.1 | Subject to this Constitution and the Corporations Act, the Directors may issue or dispose of Shares or other securities to persons: |
| (a) | on terms determined by the Directors; |
| (b) | at the issue price that the Directors determine; and |
| (c) | at the time that the Directors determine. |
| 5.2 | The Directors’ power under clause 5.1 includes the power to: |
| (a) | grant options to have Shares or other securities issued; and |
| (b) | issue Shares or other securities with: |
| (i) | any preferential, deferred or special rights, privileges or conditions; |
| (ii) | any restrictions in regard to dividend, voting, return of capital or otherwise; or |
| (c) | issue preference shares or other securities that are liable to be redeemed. |
| 6. | Buy-backs |
Subject to the Corporations Act, the Company may buy-back Shares on terms and at times determined by the Directors in their discretion.
| 7. | Commission and brokerage |
Any brokerage or commission which may be paid by the Company may be made in cash, by the issue of Shares, by the grant of options over Shares, or by a combination of any of those methods or otherwise.
| 8. | Trusts not recognised |
| 8.1 | Except as required by law or as otherwise provided by this Constitution, the Company will not recognise any person as holding a Share on trust and the Company will not recognise any equitable, contingent, future or partial interest or any other right in respect of a Share except the registered holder’s absolute right of ownership. |
| 8.2 | Subject to the other clauses, this clause applies even if the Company has notice of the relevant trust, interest or right. |
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| 9. | Joint holders |
| 9.1 | If two or more persons are registered as the holders of a Share, they are taken to hold the Share as joint tenants with benefits of survivorship and the person whose name appears first on the Register is the only joint holder entitled to receive notices from the Company. |
| 9.2 | Any one of the joint holders of a Share may give effectual receipts for any dividend or return of capital payable to the joint holders. |
| 10. | Right to certificate |
| 10.1 | Subject to the conditions of issue of any Shares or any class of Shares: |
| (a) | every Member is entitled free of charge to one certificate for all Shares registered in its name; and |
| (b) | a Member may request several certificates in reasonable denominations for different portions of its holding. |
| 10.2 | Subject to the conditions of issue of any Shares or any class of Shares, joint holders are entitled to a single certificate in their joint names in respect of each portion of their holding. The certificate will be sent to the joint holder whose name appears first in the Register. |
| 10.3 | The Company must issue a replacement certificate for Shares in accordance with the Corporations Act if: |
| (a) | the holder of the Shares is entitled to a certificate for those Shares; |
| (b) | satisfactory evidence has been received by the Company that the certificate for Shares previously issued has been stolen, lost or destroyed and has not been pledged, charged, sold or otherwise disposed of; and |
| (c) | the Member has undertaken in writing to the Company to return the certificate to the Company if it is found or received by the Member. |
| 10.4 | Every certificate for Shares must be issued and despatched in accordance with the Corporations Act. |
| 11. | Replacement of certificate |
The Directors may order worn out or defaced certificates to be cancelled and replaced by new certificates.
| 12. | Variation of class rights |
| 12.1 | The rights attached to any Shares in a class of Shares may, unless their terms of issue state otherwise, be varied or cancelled by a special resolution of the Company and: |
| (a) | with the written consent of the holders of 75% of the Shares of the class; or |
| (b) | with the sanction of a special resolution and passed at a separate meeting of the holders of Shares of the class. |
| 12.2 | The provisions of this Constitution relating to general meetings apply, with necessary changes, to separate class meetings as if they were general meetings except that: |
| (a) | a quorum is two persons holding or representing by proxy, attorney or Representative at least one-third of the Shares of the class or, if there is one holder of Shares in a class, that holder or person representing by proxy, attorney or Representative that holder; and |
| (b) | any holder of Shares of the class, present in person or by proxy, attorney or Representative may demand a poll. |
| 12.3 | The rights conferred on the holders of Shares of any class will not be taken to be varied by: |
| (a) | the issue of more Shares; or |
| (b) | the conversion of securities to new securities, |
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which rank equally with or in priority to those Shares, unless expressly provided by their respective terms of issue or the Corporations Act.
Calls
| 13. | Calls |
| 13.1 | Subject to the Corporations Act and the terms on which partly paid Shares are issued, the Directors may make calls on the holders of the Shares for any money unpaid on them. |
| 13.2 | A call is made when the resolution of the Directors authorising it is passed. |
| 13.3 | The Directors may require it to be paid by instalments. |
| 13.4 | The Directors may revoke or postpone a call before its due date for payment. |
| 13.5 | At least 10 business days before the due date for payment of a call, the Company must send to Members on whom the call is made a notice specifying: |
| (a) | the amount of the call; |
| (b) | the due date for payment; and |
| (c) | the place for payment. |
| 13.6 | A Member to whom notice of a call is given in accordance with this clause must pay to the Company the amount called in accordance with the notice. |
| 13.7 | Failure to send a notice of a call to any Member or the non-receipt of a notice by any Member does not invalidate the call. |
| 13.8 | Joint holders of Shares are jointly and severally liable to pay all calls in respect of their Shares. |
| 14. | Instalments |
| If: |
| (a) | the Directors require a call to be paid by instalments; or |
| (b) | an amount becomes payable by the terms of issue of Shares, or at a time or in circumstances specified in the terms of issue, |
| then: |
| (c) | every instalment or the amount payable under the terms of issue of Shares is payable as if it were a call made by the Directors and as if they had given notice of it; and |
| (d) | the consequences of late payment or non-payment of an instalment or the amount payable under the terms of issue of Shares are the same as the consequences of late payment or non-payment of a call. |
| 15. | Interest and expenses on calls |
| If | an amount called is not paid on or before the due date, the person liable to pay the amount must also pay: |
| (a) | interest on the amount from the due date to the time of actual payment at a rate determined by the Directors (not exceeding 20% per annum); and |
| (b) | all expenses incurred by the Company as a consequence of the non-payment, but the Directors may waive payment of the interest and expenses in whole or in part. |
| 16. | Recovery of amounts due |
| On | the hearing of any action for the recovery of money due for any call, proof that: |
| (a) | the name of the person sued was, when the call was made, entered in the Register as a holder or the holder of Shares in respect of which the call was made; |
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| (b) | the resolution making the call is duly recorded in the Directors’ minute book; and |
| (c) | notice of the call was given to the person sued, |
will be conclusive evidence of the debt.
| 17. | Differentiation |
The Directors may, on the issue of Shares, differentiate between the holders as to the amount of calls to be paid and the times of payment.
| 18. | Payment of calls in advance |
| 18.1 | The Directors may accept from a Member the whole or part of the amount unpaid on a Share before the amount accepted has been called. |
| 18.2 | The Company may: |
| (a) | pay interest on any amount accepted, until the amount is payable under a call and at a rate (not exceeding 20% per annum) agreed between the Member and the Directors; and |
| (b) | subject to any contract between the Company and the Member, repay all or any of the amount accepted in excess of the amount called on the Share. |
| 18.3 | Payment of an amount in advance of a call does not entitle the paying Member to any dividend, benefit or advantage, other than the payment of interest under this clause, to which the Member would not have been entitled if it had paid the amount when it became due. |
Lien and forfeiture
| 19. | Lien |
| 19.1 | The Company has a first and paramount lien on every partly paid Share for all money: |
| (a) | due and unpaid to the Company at a fixed time, in respect of the Share; |
| (b) | presently payable by the holder of the Share, or the holder’s estate, to the Company in respect of the Share; or |
| (c) | which the Company is required by law to pay in respect of the Share. |
| 19.2 | The Company’s lien extends to all dividends payable in respect of the Share. |
| 19.3 | Unless the Directors determine otherwise, the registration of a transfer of a Share operates as a waiver of the Company’s lien on the Share. |
| 19.4 | The Directors may declare a Share to be wholly or partly exempt from a lien. |
| 19.5 | If any law for the time being of any country, state or place imposes or purports to impose an immediate or contingent liability on the Company to make any payment or authorises a taxing authority or Government official to require the Company to make payment in respect of Shares or dividends or other moneys accruing or due to the Member: |
| (a) | the Member or, if the Member is deceased, the Member’s legal personal representative, indemnifies the Company in respect of any such payment or liability; and |
| (b) | subject to the Corporations Act, the Company: |
| (i) | has a lien on the Shares, dividends and other moneys payable in respect of the Shares, whether the Shares are held by the Member solely or jointly with another person or by the person’s legal personal representative, in respect of any payment made or liability incurred by the Company, together with reasonable expenses and interest on any payment made by the Company at a rate to be fixed by the Directors not exceeding 20% per annum from the date of payment by the Company to the date of repayment by the Member; |
| (ii) | may set off amounts so paid by the Company against amounts payable by the Company to the Member as dividends or otherwise; and |
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| (iii) | may recover as a debt due from the Member or the Member’s legal personal representative the amount of all payments made by the Company together with reasonable expenses and interest at the rate and for the period referred to in clause 19.5(b)(i). |
| 20. | Lien sale |
If:
| (a) | the Company has a lien on a Share for money presently payable; and |
| (b) | the Company has given the Member or the Member’s executors or administrators (as the case may be) holding the Share written notice demanding payment of the money; and |
| (c) | the Member fails to pay all of the money demanded, |
then 14 or more days after giving the notice, the Directors may sell the Share in any manner determined by them.
| 21. | Forfeiture notice |
| 21.1 | The Directors may at any time after a call or instalment becomes payable and remains unpaid by a Member, serve a notice on the Member requiring the Member to pay all or any of the following: |
| (a) | the unpaid amount; |
| (b) | any interest that has accrued; and |
| (c) | all expenses incurred by the Company as a consequence of the non-payment. |
| 21.2 | The notice under clause 21.1 must: |
| (a) | specify a day (not earlier than 14 days after the date of the notice) on or before which the payment required by the notice must be made; and |
| (b) | state that if a Member does not comply with the notice, the Shares in respect of which the call was made or instalment is payable will be liable to be forfeited. |
| 22. | Forfeiture |
| 22.1 | If a Member does not comply with a notice served under clause 21, then any or all of the Shares in respect of which the notice was given may be forfeited under a resolution of the Directors. |
| 22.2 | Unpaid dividends in respect of forfeited Shares will also be forfeited. |
| 22.3 | On forfeiture, Shares become the property of the Company and forfeited Shares may be sold, disposed of, or cancelled on terms determined by the Directors. |
| 22.4 | The Directors may, at any time before a forfeited Share is sold, disposed of or cancelled, annul the forfeiture of the Share on conditions determined by them. |
| 22.5 | Promptly after a Share has been forfeited: |
| (a) | notice of the forfeiture must be given to the Member in whose name the Share was registered immediately before its forfeiture; and |
| (b) | the forfeiture and its date must be noted in the Register. |
| 22.6 | Omission or neglect to give notice of or to note the forfeiture as specified in clause 22.5 will not invalidate a forfeiture. |
| 23. | Liability of former Member |
| 23.1 | The interest of a person who held Shares which are forfeited is extinguished but the former Member remains liable to pay: |
| (a) | all money (including interest and expenses) that was payable by the Member to the Company at the date of forfeiture in respect of the forfeited Shares; and |
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| (b) | interest from the date of forfeiture until payment at a rate determined by the Directors (not exceeding 20% per annum). |
| 23.2 | A former Member’s liability to the Company ceases if and when the Company receives payment in full of all money (including interest and expenses) payable by the former Member in respect of the Shares. |
| 24. | Disposal of Shares |
| 24.1 | The Company may: |
| (a) | receive the consideration (if any) given for a forfeited Share on any sale or disposition of the Share, or a Share sold under a lien sale; and |
| (b) | execute a transfer of the Share in favour of a person to whom the Share is sold or disposed of. |
| 24.2 | The purchaser of the Share: |
| (a) | is not bound to check the regularity of the sale or the application of the purchase price; |
| (b) | obtains title to the Share despite any irregularity in the sale; and |
| (c) | will not be subject to complaint or remedy by the former holder of the Share in respect of the purchase. |
| 24.3 | A statement signed by a Director and the Secretary that the Share has been regularly forfeited and sold or re-issued, or regularly sold without forfeiture to enforce a lien, is conclusive evidence of the matters stated as against all persons claiming to be entitled to the Share. |
| 24.4 | The net proceeds of any sale made to enforce a lien or on forfeiture must be applied by the Company in the following order: |
| (a) | in payment of the costs of the sale; |
| (b) | in payment of all amounts secured by the lien or all money that was payable in respect of the forfeited Share; and |
| (c) | in payment of any surplus to the former Member whose Share was sold. |
Transfer of Shares
| 25. | Transfer |
| 25.1 | Subject to this Constitution, a Member may transfer the Shares held by that Member. |
| 25.2 | Shares may be transferred by: |
| (a) | a written transfer instrument in any usual or common form; or |
| (b) | any other form approved by the Directors. |
| 25.3 | A written transfer instrument referred to in clause 25.2 must be executed by or on behalf of the transferor and the transferee. |
| 25.4 | A transferor of Shares remains the holder of the Shares transferred until the transfer is registered and the name of the transferee is entered in the Register in respect of the Shares. |
| 25.5 | A transfer of Shares does not pass the right to any unpaid dividends or dividends declared on the Shares until such registration. |
| 26. | Transfer procedure |
| 26.1 | Subject to clause 27, the Directors are not required to register a transfer of Shares unless: |
| (a) | the transfer is left at the Company’s registered office or the office of the Register; |
| (b) | the transfer is accompanied by a certificate for the Shares dealt with in the transfer, unless the Directors waive production of the certificate on receiving satisfactory evidence of the loss or destruction of the certificate; and |
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| (c) | the Directors have been provided with any further information they reasonably require to establish the right of the person transferring the Shares to make the transfer. |
| 26.2 | Except where the issue of a certificate is to replace a lost or destroyed certificate, the Company must register all registrable transfer forms and issue certificates without charge. |
| 27. | Right to refuse registration |
| 27.1 | Despite anything otherwise provided in this Constitution the Directors shall not decline to register any transfer of Shares nor suspend registration thereof: |
| (a) | where such transfer is in favour of a financier or any nominee of a financier and the transfer is as contemplated by, or pursuant to, any mortgage or charge of Shares or any call or other share option granted in favour of the financier; or |
| (b) | where such transfer is by or on behalf of a financier or any nominee of a financier in favour of any third party upon disposal or realisation of Shares following the financier having become entitled to exercise or enforce its rights under any such mortgage, charge and/or call or other option, |
and a certificate by any officer of the financier that the relevant transfer is within paragraph (a) or
| (b) | above shall be conclusive evidence of that fact. |
| 27.2 | Subject to clause 27.1, the Directors may: |
| (a) | in their absolute discretion and without assigning any reason decline to register any transfer of Shares or other securities; and |
| (b) | in their absolute discretion refuse to register any transfer of Shares or other securities on which stamp duty or other taxes of a similar nature are payable but unpaid. |
| 28. | Closure of Register |
The transfer books and the Register may be closed for up to 30 days in each year.
Transmission of Shares
| 29. | Title on death |
| 29.1 | The legal personal representative of a deceased Member who was the sole holder of Shares is the only person whom the Company will recognise as having any title to the deceased Member’s Shares. |
| 29.2 | If a deceased Member was a joint holder of Shares, the other joint holder is the only person whom the Company will recognise as having any title to the deceased Member’s Shares. |
| 29.3 | The estate of the deceased Member will not be released from any liability to the Company in respect of the Shares. |
| 29.4 | The Company may register a transfer to a transferee who dies before the transfer is registered. |
| 30. | Transmission |
| 30.1 | A person who becomes entitled to a Share in consequence of the death, lunacy or bankruptcy of a Member may, subject to producing to the Directors evidence of its entitlement which is satisfactory to the Directors, elect to: |
| (a) | be registered as the holder of the Share; or |
| (b) | transfer the Share to some other person nominated by it. |
| 30.2 | If the person who has become entitled to a Share: |
| (a) | elects to be registered as the holder, then the person must deliver or send to the Company a written notice of election signed by it; or |
| (b) | elects to transfer the Share, then the person must execute a transfer of the Share. |
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| 30.3 | An election to be registered as a holder of a Share under clause 30.1(a) or a transfer of a Share from a Member or deceased Member under this clause is subject to the same limitations, restrictions and provisions of this Constitution as would apply if the election were a transfer or the transfer were made by the Member or deceased Member itself. |
| 30.4 | A person who: |
| (a) | has become entitled to a Share by operation of law; and |
| (b) | has produced evidence of its entitlement which is satisfactory to the Directors, is entitled to the dividends and other rights of the registered holder of the Share. |
| 30.5 | Where two or more persons are jointly entitled to any Share in consequence of the death of the registered holder, they will be considered to be joint holders of the Share. |
| 30.6 | Any person who is registered under this clause must indemnify the Company against all liabilities, costs, losses and expenses incurred by the Company as a result of registering the person. |
Changes to share capital
| 31. | Dealing with share fractions |
For the purpose of giving effect to a conversion of all or any of the Shares into a larger or smaller number of Shares, the Directors may settle any difficulty which arises with respect to fractions of Shares as they think expedient and in particular may:
| (a) | issue fractional certificates; |
| (b) | vest any fractions of Shares in trustees on such trusts for the persons entitled to the fractions of Shares as may seem expedient to the Directors; or |
| (c) | sell the Shares representing the fractions for the best price reasonably obtainable to any person and distribute the net proceeds of sale (subject to retention by the Company of small amounts where the cost of distribution would be disproportionate to the amounts involved) in due proportion among those Members and, for such sale, any Director may execute an instrument of transfer of the Shares to the purchaser. |
General meetings
| 32. | Calling general meeting |
| 32.1 | Any Director may, at any time, call a general meeting. |
| 32.2 | A Member may only request the Directors to call and arrange to hold a general meeting in accordance with section 249D of the Corporations Act. |
| 32.3 | A Member may not call or arrange to hold a general meeting except under section 249E or 249F of the Corporations Act. |
| 33. | Notice of general meeting |
| 33.1 | Subject to the provisions of the Corporations Act allowing general meetings to be held with shorter |
notice, at least 21 days written notice (exclusive of the day on which the notice is served or deemed to be served and of the day for which notice is given) must be given to Members of any general meeting.
| 33.2 | A notice calling a general meeting: |
| (a) | must specify the place, date and time of the meeting and, if the meeting is to be held in two or more places, the technology that will be used to facilitate this; |
| (b) | must state the general nature of the business to be transacted at the meeting; |
| (c) | must specify a place and facsimile number and may specify an electronic address or other electronic means for the purposes of proxy appointment or proxy appointment authorities; |
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| (d) | if a special resolution is to be proposed at the meeting, must specify an intention to propose the special resolution and state the resolution; and |
| (e) | must comply with the Corporations Act. |
| 33.3 | A notice of an annual general meeting need not state that the business to be transacted at the meeting includes: |
| (a) | the consideration of the annual financial report, Directors’ report and Auditor’s report; |
| (b) | the election of directors; or |
| (c) | the appointment and fixing of the remuneration of the Auditor. |
| 33.4 | The Directors may postpone or cancel any general meeting whenever they think fit (other than a meeting called as the result of a request under clause 32.2). The Directors must give notice of the postponement or cancellation to all persons referred to in clause 91.1 entitled to receive notices from the Company. |
| 33.5 | The failure or accidental omission to send a notice of a general meeting (including a proxy appointment form) to any Member or the non-receipt of a notice (or form) by any Member does not invalidate the proceedings at or any resolution passed at the general meeting. |
Proceedings at general meetings
| 34. | Member |
In clauses 35, 36, 38 and 40, Member includes a Member present in person or by proxy, attorney or Representative.
| 35. | Quorum |
| 35.1 | No business may be transacted at a general meeting unless a quorum of Members is present when the meeting proceeds to business. |
| 35.2 | A quorum of Members is two Members unless there is only one Member, when a quorum is that Member. |
| 35.3 | If a quorum is not present within 30 minutes after the time appointed for a general meeting: |
| (a) | if the general meeting was called on the requisition of Members, it is automatically dissolved; or |
| (b) | in any other case: |
| (i) | it will stand adjourned to the same time and place 7 days after the general meeting, or to another day, time and place determined by the Directors; and |
| (ii) | if at the adjourned general meeting a quorum is not present within 30 minutes after the time appointed for the general meeting, it is automatically dissolved. |
| 36. | Chairperson |
| 36.1 | The chairperson, or in the chairperson’s absence the deputy chairperson, of Directors’ meetings will be the chairperson at every general meeting of Members. |
| 36.2 | If: |
| (a) | there is no chairperson or deputy chairperson; or |
| (b) | neither the chairperson nor deputy chairperson is present within 15 minutes after the time appointed for holding the general meeting; or |
| (c) | the chairperson and deputy chairperson are unwilling to act as chairperson of the general meeting, |
the Directors present may elect a chairperson of the general meeting of Members.
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| 36.3 | If no election is made under clause 36.2, then: |
| (a) | the Members may elect one of the Directors present as chairperson; or |
| (b) | if no Director is present or is willing to take the chair, the Members may elect one of the Members present as chairperson. |
| 36.4 | If there is a dispute at a general meeting about a question of procedure, the chairperson may determine the question. |
| 37. | Adjournment |
| 37.1 | The chairperson of a general meeting at which a quorum is present: |
| (a) | in his or her discretion may adjourn the meeting with the meeting’s consent; and |
| (b) | must adjourn the meeting if the meeting directs him or her to do so. |
| 37.2 | An adjourned general meeting may take place at a different venue to the initial general meeting. |
| 37.3 | The only business that can be transacted at an adjourned general meeting is the unfinished business of the initial general meeting. |
| 37.4 | If a general meeting has been adjourned for more than 21 days, at least 3 days written notice (exclusive of the day on which the notice is served or taken to be served and of the day for which notice is given) of the adjourned meeting must be given to Members. |
| 38. | Decision on questions |
| 38.1 | Subject to the Corporations Act in relation to special resolutions, a resolution is carried if a majority of the votes cast on the resolution are in favour of the resolution. |
| 38.2 | A resolution put to the vote of a meeting is decided on a show of hands unless a poll is demanded in accordance with the Corporations Act. |
| 38.3 | The chairperson does not have a casting vote in addition to the chairperson’s votes as a Member, proxy, attorney or Representative. |
| 38.4 | Unless a poll is demanded: |
| (a) | a declaration by the chairperson that a resolution has been carried, carried by a specified majority, or lost; and |
| (b) | an entry to that effect in the minutes of the meeting, |
are conclusive evidence of the fact without proof of the number or proportion of the votes in favour of or against the resolution.
| 38.5 | The demand for a poll may be withdrawn. |
| 38.6 | A decision of a general meeting may not be impeached or invalidated on the ground that a person voting at the meeting was not entitled to do so. |
| 39. | Taking a poll |
| 39.1 | A poll will be taken when and in the manner that the chairperson directs. |
| 39.2 | The result of the poll will be the resolution of the meeting at which the poll was demanded. |
| 39.3 | The chairperson may determine any dispute about the admission or rejection of a vote. |
| 39.4 | The chairperson’s determination, if made in good faith, will be final and conclusive. |
| 39.5 | A poll demanded on the election of the chairperson or the adjournment of a general meeting must be taken immediately. |
| 39.6 | After a poll has been demanded at a general meeting, the general meeting may continue for the transaction of business other than the question on which the poll was demanded. |
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Votes of Members
| 40. | Entitlement to vote |
| 40.1 | Subject to this Constitution and to any rights or restrictions attaching to any class of Shares: |
| (a) | every Member may vote; |
| (b) | subject to clause 45.3, on a show of hands every Member has one vote; and |
| (c) | on a poll every Member has: |
| (i) | one vote for each fully paid Share; and |
| (ii) | voting rights pro rata to the issue price of a Share on each partly paid Share held by the Member. |
| 40.2 | If a Member is of unsound mind or is a person whose estate or property has had a personal representative, trustee or other person appointed to administer it, the Member’s personal representative, trustee or other person with the management of the Member’s estate or property may exercise any rights of the Member in relation to a meeting of Members as if the personal representative, trustee or other person was a Member. |
| 41. | Unpaid calls |
A Member is not entitled to vote or to be counted in a quorum unless all calls and other sums payable by the Member in respect of Shares have been paid.
| 42. | Joint holders |
| 42.1 | If two or more joint holders purport to vote, the vote of the joint holder whose name appears first in the Register will be accepted, to the exclusion of the other joint holder or holders. |
| 42.2 | For the purposes of this clause, several executors or administrators of a deceased Member in whose sole name any Shares are registered will be taken to be joint holders of those Shares. |
| 43. | Objections |
| 43.1 | An objection to the qualification of a voter may only be raised at the meeting or adjourned general meeting at which the voter tendered its vote. |
| 43.2 | An objection must be referred to the chairperson of the meeting, whose decision made in good faith is final. |
| 43.3 | A vote which the chairperson does not disallow under an objection is valid for all purposes. |
| 44. | Votes by operation of law |
A person who has satisfied the Directors not less than 24 hours before a general meeting that it is entitled to a Share by operation of law may exercise all rights attached to the Share in relation to a general meeting, as if the person were the registered holder of the Share.
| 45. | Votes by proxy |
| 45.1 | A Member who is entitled to vote at a general meeting of the Company may appoint not more than two proxies to attend and vote at the meeting on that Member’s behalf. |
| 45.2 | A proxy need not be a Member. |
| 45.3 | If a Member appoints one proxy, that proxy may, subject to the Corporations Act, vote on a show of hands. |
| 45.4 | If a Member appoints two proxies and the appointment does not specify the proportion or number of the Member’s votes, each proxy may exercise half the votes. However, neither proxy may vote on a show of hands. |
| 45.5 | A proxy may demand or join in demanding a poll. |
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| 45.6 | A proxy may vote or abstain as he or she chooses except where the appointment of the proxy directs the way the proxy is to vote on a particular resolution. If an appointment directs the way the proxy is to vote on a particular resolution: |
| (a) | the proxy need not vote on a show of hands, but if the proxy does so, the proxy must vote that way; |
| (b) | if the proxy has two or more appointments that specify different ways to vote on the resolution - the proxy must not vote on a show of hands; |
| (c) | if the proxy is the chair - the proxy must vote on a poll, and must vote that way; and |
| (d) | if the proxy is not the chair - the proxy need not vote on a poll, but if the proxy does so, the proxy must vote that way. |
| 46. | Document appointing proxy |
| 46.1 | An appointment of a proxy is valid if it is signed or authenticated in accordance with the Corporations Act by the Member making the appointment and contains the information required by subsection 250A(1) of the Corporations Act. The Directors may determine that an appointment of a proxy is valid even if it only contains some of the information required by section 250A(1) of the Corporations Act. |
| 46.2 | The Company may send a proxy appointment form to Members in a form which has been approved by the Directors or by the chairperson and the Managing Director. |
| 46.3 | A proxy’s appointment is valid at an adjourned general meeting. |
| 46.4 | A proxy or attorney may be appointed for all general meetings or for any number of general meetings or for a particular purpose. |
| 46.5 | Unless otherwise provided for in the proxy’s appointment or in any instrument appointing an attorney, the appointment of the proxy or the attorney will be taken to confer authority: |
| (a) | to vote on: |
| (i) | any amendment moved to the proposed resolutions and on any motion that the proposed resolutions not be put or any similar motion; and |
| (ii) | any procedural motion, including any motion to elect the chairperson, to vacate the chair or to adjourn the general meeting, |
even though the appointment may specify the way the proxy or attorney is to vote on a particular resolution; and
| (b) | to vote on any motion before the general meeting whether or not the motion is referred to in the appointment. |
| 47. | Proxy in blank |
If a proxy appointment is signed or authenticated by the Member but does not name the proxy or proxies in whose favour it is given, the chairperson may either act as proxy or complete the proxy appointment by inserting the name or names of one or more Directors or the Secretary.
| 48. | Lodgement of proxy |
| 48.1 | Subject to clause 48.3, the appointment of a proxy or attorney must be received by the Company, at least 48 hours (unless reduced in the notice of meeting to which the appointment relates) before the general meeting (or the resumption of an adjourned general meeting) at which the appointee is to attend and vote. |
| 48.2 | If the appointment purports to be executed under a power of attorney or other authority, the original document or a certified copy of it must be received by the Company at least 48 hours (unless reduced in the notice of meeting to which the appointment relates) before the general meeting (or the resumption of an adjourned general meeting). |
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| 48.3 | The Company receives an appointment of a proxy or attorney or other authority under which it was signed when they are: |
| (a) | received at: |
| (i) | the Company’s registered office; |
| (ii) | a facsimile number at the Company’s registered office; or |
| (iii) | a place, facsimile number or electronic address specified for that purpose in the notice of general meeting; or |
| (b) | if the notice of general meeting specifies other electronic means by which a Member may give an appointment, received by the Company in accordance with the Corporations Act. |
| 49. | Validity |
A vote cast in accordance with an appointment of proxy or power of attorney is valid even if before the vote was cast the appointor:
| (a) | died; |
| (b) | became mentally incapacitated; |
| (c) | revoked the proxy or power; or |
| (d) | transferred the Shares in respect of which the vote was cast, |
unless any written notification of the death, unsoundness of mind, revocation or transfer was received by the Company before the relevant general meeting or adjourned general meeting.
| 50. | Representatives of corporations |
| 50.1 | Any Member, or Member’s proxy appointed under section 249X(1) of the Corporations Act, that is a corporation may appoint an individual as its representative as provided by the Corporations Act. If a Member corporation does so: |
| (a) | its representative may exercise at the relevant general meeting all the powers which the Member corporation could exercise if it were a natural person; and |
| (b) | when its representative is present at a meeting, the Member corporation is considered to be personally present at the meeting. |
| 50.2 | The chairperson of a general meeting may permit a person claiming to be a Representative to exercise his or her powers even if he or she has not produced a certificate evidencing his or her appointment, or may allow the Representative to vote on the condition that he or she subsequently establishes to the satisfaction of the chairperson of the general meeting his or her status as a Representative within a period prescribed by the chairperson of the general meeting. |
| 50.3 | The appointment of a Representative may set out restrictions on the Representative’s powers. |
Written resolutions
| 51. | Written resolutions |
| 51.1 | The Company may pass a resolution without a general meeting being held if all the Members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. The resolution is passed when the last Member signs. |
| 51.2 | For the purposes of clause 51.1, separate copies of a document may be used for signing by Members if the wording is identical in each copy. |
| 51.3 | If the Company has one Member, the Company may pass a resolution by the Member recording it and signing the record. |
| 51.4 | Any document referred to in this clause may be in the form of a facsimile transmission. |
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| 51.5 | Any written resolution passed in accordance with this clause satisfies any requirement in the Constitution or in the Corporations Act (to the extent permitted by the Corporations Act) that the resolution be passed at a general meeting. |
Appointment and removal of Directors
| 52. | Number of Directors |
| 52.1 | Subject to the Corporations Act, the Company may by resolution passed at a general meeting increase the number of Directors. |
| 52.2 | Until the Company resolves otherwise there will be: |
| (a) | a minimum of one Director; and |
| (b) | a maximum of ten Directors. |
| 53. | Qualification |
Neither a Director nor an Alternate Director has to hold any Shares.
| 54. | Appointment and removal of Directors |
| 54.1 | The initial Directors of the Company are the persons who have consented to act as directors and are set out in the Company’s application for registration as a company. Those persons hold office subject to this Constitution. |
| 54.2 | The Company may by resolution passed in general meeting: |
| (a) | remove any Director; and |
| (b) | appoint another person in the Director’s place. |
| 54.3 | If the conduct or position of any Director is such that continuance in office appears to the majority of the Directors to be prejudicial to the interests of the Company, a majority of Directors at a meeting of the Directors specifically called for that purpose may suspend that Director. |
| 54.4 | Within 14 days of any suspension under clause 54.3, the Directors must call a general meeting, at which the Members may either confirm the suspension and remove the Director from office in accordance with clause 54.3 or annul the suspension and reinstate the Director. |
| 55. | Additional and casual Directors |
Subject to clause 52, the Directors may appoint any person as a Director to fill a casual vacancy or as an addition to the existing Directors.
| 56. | Period of office |
A Director will continue to hold office until he or she dies or until his or her office is vacated under clause 57.
| 57. | Vacation of office |
The office of a Director immediately becomes vacant if the Director:
| (a) | is prohibited by the Corporations Act from holding office or continuing as a Director; |
| (b) | cannot manage the Company because of his or her mental incapacity and is a person whose estate or property has had a personal representative or trustee appointed to administer it; |
| (c) | resigns by notice in writing to the Company; or |
| (d) | is removed by a resolution of the Company. |
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Remuneration of Directors
| 58. | Remuneration of non-Executive Directors |
| 58.1 | The Directors (other than the Managing Director or an Executive Director) may be paid as remuneration for their services up to the aggregate maximum sum from time to time determined by the Company by ordinary resolution, or, if no such aggregate maximum sum has been so determined, $200,000 per annum. |
| 58.2 | The remuneration will be divided between the non-Executive Directors in such proportion and manner as the Directors agree and, in default of agreement, equally. |
| 59. | Remuneration of Executive Directors |
The remuneration of a Managing Director or of an Executive Director may from time to time be fixed by the Directors.
| 60. | Other payments to Directors |
| 60.1 | If a Director is required to perform services for the Company which in the opinion of the Directors are outside the scope of the ordinary duties of a Director, then the Company may pay the Director a fixed sum determined by the Directors in addition to or instead of the Director’s remuneration under clause 58.1. |
| 60.2 | The Directors may also be paid all travelling, hotel and other expenses properly incurred by them in attending and returning from meetings of the Directors or any committee of the Directors or general meetings of the Company or otherwise in connection with the Company’s business. |
| 60.3 | The Company may also pay a premium in respect of a contract insuring a person who is or has been a Director against a liability incurred by the person as a Director, except in circumstances prohibited by the Corporations Act. |
| 61. | Retirement benefits |
| 61.1 | Subject to the Corporations Act, the Company may give a person a benefit in connection with a Director’s retirement from a board or managerial office in the Company or a related body corporate of the Company. |
| 61.2 | Subject to the Corporations Act, the Company may enter into an agreement or contract with a person for the giving to the person or any other person of a benefit in connection with a Director’s retirement from a board or managerial office in the Company or a related body corporate of the Company. |
Powers and duties of Directors
| 62. | Directors to manage Company |
| 62.1 | The business of the Company is managed by the Directors who may exercise all powers of the Company that this Constitution or the Corporations Act do not require to be exercised by the Company in general meeting. |
| 62.2 | Without limiting the generality of clause 62.1, the Directors may exercise all the powers of the Company to: |
| (a) | borrow money; |
| (b) | charge any property or business of the Company or all or any of its uncalled capital; |
| (c) | issue debentures or give any other security for a debt, liability or obligation of the Company or of any other person; and |
| (d) | guarantee or to become liable for the payment of money or the performance of any obligation by or of any other person. |
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| 62.3 | Each Director is authorised to act in the best interests of any holding company of the Company, including its ultimate holding company. |
| 62.4 | Clause 62.3 does not in any way operate, nor may be construed, so as to restrict or limit a Director from acting in a manner which, irrespective of clause 62.3, is in accordance with the Corporations Act and the general law (including the law relating to directors’ fiduciary duties). |
Proceedings of Directors
| 63. | Directors’ meetings |
| 63.1 | A Director may at any time, and the Secretary must on the request of a Director, call a Directors’ meeting. |
| 63.2 | Subject to the Corporations Act, a Directors’ meeting may be held by the Directors communicating with each other by any technological means by which they are able simultaneously to hear each other and to participate in discussion. |
| 63.3 | The Directors need not all be physically present in the same place for a Directors’ meeting to be held. |
| 63.4 | A Director who participates in a meeting held in accordance with clause 63.2 is taken to be present and entitled to vote at the meeting. |
| 63.5 | A Director can only withdraw his or her consent to the means of communication under clause 63.2 between Directors proposed for a Directors’ meeting if the Director does so at least 48 hours before the meeting. |
| 63.6 | Clause 63.2 applies to meetings of Directors’ committees as if all committee members were Directors. |
| 63.7 | The Directors may meet together, adjourn and regulate their meetings as they think fit. |
| 63.8 | At a meeting of Directors, a quorum is two Directors unless the Company has only one Director, when the quorum is that Director. |
| 63.9 | Where a quorum cannot be established for the consideration of a particular matter at a meeting of Directors, the chairperson or the Managing Director may call a general meeting of Members to deal with the matter. |
| 63.10 | Notice of a meeting of Directors may be given in writing, or the meeting may be otherwise called using any technology consented to by all the Directors. |
| 64. | Decision on questions |
| 64.1 | Subject to this Constitution, questions arising at a meeting of Directors are to be decided by a majority of votes of the Directors present and voting and, subject to clause 65, each Director has one vote. |
| 64.2 | The chairperson of a meeting does not have a casting vote in addition to his or her deliberative vote if there is an equality of votes. |
| 64.3 | An Alternate Director has one vote for each Director for whom he or she is an alternate. If the Alternate Director is a Director, he or she also has a vote as a Director. |
| 65. | Directors’ interests |
| 65.1 | As required by the Corporations Act, a Director must give the Directors notice of any material personal interest in a matter that relates to the affairs of the Company. |
| 65.2 | A Director or a body or entity in which a Director has a direct or indirect interest may: |
| (a) | enter into any agreement or arrangement with the Company; |
| (b) | hold any office or place of profit (other than auditor) in the Company; and |
| (c) | act in a professional capacity (other than as auditor) for the Company, |
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and the Director or the body or entity can receive and keep beneficially any remuneration, profits or benefits under any agreement or arrangement with the Company or from holding an office or place of profit in or acting in a professional capacity with the Company.
| 65.3 | The fact that a Director holds office as a director, and has fiduciary obligations arising out of that office: |
| (a) | will not void or render voidable a contract made by a Director with the Company; |
| (b) | will not void or render voidable a contract or arrangement entered into by or on behalf of the Company and in which the Director may have any interest; and |
| (c) | will not require the Director to account to the Company for any profit realised by or under any contract or arrangement entered into by or on behalf of the Company and in which the Director may have any interest. |
| 65.4 | A Director may be or become a director or other officer of, or otherwise be interested in: |
| (a) | any related body corporate; or |
| (b) | any other body corporate promoted by the Company or in which the Company may be interested as a vendor, shareholder or otherwise, |
and is not accountable to the Company for any remuneration or other benefits received by the director or officer of, or from having an interest in, that body corporate.
| 65.5 | A Director who has a material personal interest in a matter that is being considered at a Directors’ meeting must not: |
| (a) | be present while the matter is being considered at the meeting; or |
| (b) | vote on the matter, |
unless permitted to do so by the Corporations Act, in which case the Director may:
| (c) | be counted in determining whether or not a quorum is present at any meeting of Directors considering that contract or arrangement or a proposed contract or arrangement; |
| (d) | sign or countersign any document relating to that contract or arrangement or a proposed contract or arrangement; and |
| (e) | vote in respect of, or in respect of any matter arising out of, the contract or arrangement or proposed contract or arrangement. |
| 66. | Alternate Directors |
| 66.1 | A Director may, with the approval of a majority of the other Directors, appoint any person as his or her alternate for a period determined by that Director. |
| 66.2 | An Alternate Director is entitled to notice of Directors’ meetings and, if the appointor is not present at a meeting, is entitled to attend, be counted in a quorum and vote as a Director. |
| 66.3 | An Alternate Director is an officer of the Company and is not an agent of the appointor. |
| 66.4 | The provisions of this Constitution which apply to Directors also apply to Alternate Directors, except that Alternate Directors are not entitled to any remuneration from the Company. |
| 66.5 | The appointment of an Alternate Director may be revoked at any time by the appointor. |
| 66.6 | An Alternate Director’s appointment ends automatically when his or her appointor ceases to be a Director. |
| 66.7 | Any appointment or revocation under this clause must be effected by written notice delivered to the Secretary. |
| 67. | Remaining Directors |
| 67.1 | The Directors may act even if there are vacancies on the board. |
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| 67.2 | If the number of Directors is not sufficient to constitute a quorum at a Directors’ meeting, the Directors may act only to: |
| (a) | appoint a Director; or |
| (b) | call a general meeting. |
| 68. | Chairperson |
| 68.1 | The Directors may elect a Director as chairperson of Directors’ meetings and may determine the period for which the chairperson will hold office. |
| 68.2 | If no chairperson is elected or if the chairperson is not present at any Directors’ meeting within 10 minutes after the time appointed for the meeting to begin, the Directors present must elect a Director to be chairperson of the meeting. |
| 68.3 | The Directors may elect a Director as deputy chairperson to act as chairperson in the chairperson’s absence. |
| 69. | Directors’ committees |
| 69.1 | The Directors may delegate any of their powers to: |
| (a) | a committee of Directors; |
| (b) | a Director; |
| (c) | an employee of the Company; or |
| (d) | any other person. |
| 69.2 | A committee or person to which any powers have been delegated must exercise its powers in accordance with any directions of the Directors and a power exercised in that way is taken to have been exercised by the Directors. |
| 69.3 | A committee or person to which any powers have been delegated may be authorised to sub-delegate all or any of the powers for the time being vested in it. |
| 69.4 | The Directors may at any time revoke any delegation of power. |
| 69.5 | Meetings of any committee will be governed by the provisions of this Constitution which deal with Directors’ meetings so far as they are applicable and are not inconsistent with any directions of the Directors. |
| 70. | Written resolutions |
| 70.1 | The Directors may pass a resolution without a Directors’ meeting being held if all the Directors entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. The resolution is passed when the last Director entitled to vote on the resolution signs. |
| 70.2 | For the purposes of clause 70.1, separate copies of a document may be used for signing by Directors if the wording of the resolution and statement is identical in each copy. |
| 70.3 | If the Company has one Director, the Director may pass a resolution or make a declaration by recording it and signing the record. |
| 70.4 | Any document referred to in this clause may be in the form of a facsimile transmission or electronic notification. |
| 70.5 | This clause applies to meetings of Directors’ committees as if all members of the committee were Directors. |
| 71. | Validity of acts of Directors |
If it is discovered that:
| (a) | there was a defect in the appointment of a person as a Director, Alternate Director or member of a Directors’ committee; or |
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| (b) | a person appointed to one of those positions was disqualified, |
all acts of the Directors or any Directors’ committee before the discovery was made are as valid as if the person had been duly appointed and was not disqualified.
| 72. | Minutes and Registers |
| 72.1 | The Directors must cause minutes to be made of: |
| (a) | the names of the Directors present at all general meetings, Directors’ meetings and meetings of Directors’ committees; |
| (b) | all proceedings and resolutions of general meetings, Directors’ meetings and meetings of Directors’ committees; |
| (c) | all resolutions passed by Directors in accordance with clause 70; |
| (d) | all orders made by the Directors and Directors’ committees; and |
| (e) | all disclosures of interests made under clause 65. |
| 72.2 | Minutes must be signed by the chairperson of the meeting or by the chairperson of the next meeting of the relevant body, and if so signed will as between the Directors be conclusive evidence of the matters stated in such minutes. |
Managing Director or Executive Director
| 73. | Appointment of Managing Director or Executive Director |
| 73.1 | The Directors may appoint a Director to the office of Managing Director or any other office (other than auditor) or employment under the Company for any period (but not for life) and on any terms as they think fit. |
| 73.2 | A Director (other than a Managing Director) appointed under clause 73.1 is referred to in this Constitution as an Executive Director. |
| 73.3 | The Directors may, subject to the terms of a Managing Director’s or Executive Director’s employment contract, suspend, remove or dismiss him or her from that office and appoint another Director in that place. |
| 73.4 | If a Managing Director or Executive Director ceases to be a Director, his or her appointment as Managing Director or Executive Director terminates automatically. |
| 73.5 | If a Managing Director or Executive Director is suspended from office, he or she will not be entitled to attend or vote at any meeting of Directors. |
| 74. | Powers |
| 74.1 | The Directors may confer on a Managing Director or Executive Director any powers exercisable by the Directors, subject to any terms and restrictions determined by the Directors. |
| 74.2 | The Managing Director and other Executive Directors are authorised to sub delegate all or any of the powers vested in them. |
| 74.3 | Any power conferred under this clause may be concurrent with or to the exclusion of the Directors’ powers. |
| 74.4 | The Directors may at any time withdraw or vary any of the powers conferred on a Managing Director or Executive Director. |
Local management
| 75. | Local management |
| 75.1 | The Directors may provide for the management and transaction of the affairs of the Company in any places and in such manner as they think fit. |
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| 75.2 | Without limiting clause 75.1 the Directors may: |
| (a) | establish local boards or agencies for managing any of the affairs of the Company in a specified place and appoint any persons to be members of those local boards or agencies; and |
| (b) | delegate to any person appointed under clause 75.2(a) any of the powers, authorities and discretions which may be exercised by the Directors under this Constitution, |
on any terms and subject to any conditions determined by the Directors.
| 75.3 | The Directors may at any time revoke or vary any delegation under this clause. |
| 76. | Appointment of attorneys and agents |
| 76.1 | The Directors may from time to time by resolution or power of attorney executed in accordance with section 127 of the Corporations Act appoint any person to be the agent or attorney of the Company: |
| (a) | for the purposes; |
| (b) | with the powers, authorities and discretions (not exceeding those exercisable by the Directors under this Constitution); |
| (c) | for the period; and |
| (d) | subject to the conditions, |
determined by the Directors.
| 76.2 | An appointment by the Directors of an attorney or agent of the Company may be made in favour of: |
| (a) | any member of any local board established under this Constitution; |
| (b) | any company; |
| (c) | the members, directors, nominees or managers of any company or firm; or |
| (d) | any fluctuating body of persons whether nominated directly or indirectly by the Directors. |
| 76.3 | A power of attorney may contain such provisions for the protection and convenience of persons dealing with an attorney as the Directors think fit. |
| 76.4 | The Directors may appoint attorneys or agents by facsimile transmission, telegraph or cable to act for and on behalf of the Company. |
| 76.5 | An attorney or agent appointed under this clause may be authorised by the Directors to sub delegate all or any of the powers authorities and discretions for the time being vested in it. |
Secretary
| 77. | Secretary |
| 77.1 | If required by the Corporations Act, there must be at least one secretary of the Company appointed by the Directors for a term and at remuneration and on conditions determined by them. |
| 77.2 | The Secretary (if any) is entitled to attend and be heard on any matter at all Directors’ and general meetings. |
| 77.3 | The Directors may, subject to the terms of the Secretary’s employment contract, suspend, remove or dismiss the Secretary. |
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Seals
| 78. | Common Seal |
If the Company has a Seal:
| (a) | the Directors must provide for the safe custody of the Seal; |
| (b) | the Seal must not be used without the authority of the Directors or a Directors’ committee authorised to use the Seal; |
| (c) | subject to clause 78(d), every document to which the Seal is affixed must be signed by a Director and be countersigned by another Director, the Secretary or another person appointed by the Directors to countersign the document; and |
| (d) | if the Company has only one Director who is also the only secretary of the Company, or if there is no Secretary, every document to which the Seal is affixed must be signed by the Director but need not be countersigned. |
| 79. | Duplicate Seal |
If the Company has a Seal, the Company may have one or more duplicate Seals of the Seal each of which:
| (a) | must be a facsimile of the Seal with ‘Duplicate Seal’ on its face; |
| (b) | must only be used with the authority of the Directors or a Directors’ committee. |
| 80. | Share Seal |
| 80.1 | If the Company has a Seal the Company may have a Share Seal which may be affixed to Share certificates. |
| 80.2 | The Share Seal (if any): |
| (a) | must be a facsimile of the Seal with ‘Share Seal’ or ‘Certificate Seal’ on its face; and |
| (b) | must only be used with the authority of the Directors or a Directors’ committee. |
Inspection of records
| 81. | Times for inspection |
| 81.1 | Except as otherwise required by the Corporations Act, the Directors may determine whether and to what extent, and at what times and places and under what conditions, the financial records and other documents of the Company or any of them will be open for inspection by Members other than Directors. |
| 81.2 | A Member other than a Director does not have the right to inspect any financial records or other documents of the Company unless the Member is authorised to do so by a court order or a resolution of the Directors. |
Dividends and reserves
| 82. | Payment of dividends |
| 82.1 | The Directors may: |
| (a) | declare that the Company pay interim or final dividends; or |
| (b) | determine that dividends are payable by the Company and fix the amount and time for and method of payment. |
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| 82.2 | Subject to the Corporations Act, if the Directors determine that a dividend is payable under clause 82.1(b), they may amend or revoke the resolution to pay the dividend at any time before the date fixed for payment. |
| 83. | Interest |
The Company must not pay interest on a dividend.
| 84. | Reserves |
| 84.1 | The Directors may set aside out of profits an amount by way of reserves as they think appropriate to pay a dividend. |
| 84.2 | The Directors may apply the reserves for any purpose for which profits may be properly applied. |
| 84.3 | Pending any such application, the Directors may invest or use the reserves in the business of the Company or in other investments as they think fit. |
| 84.4 | The Directors may carry forward any undistributed profits without transferring them to a reserve. |
| 85. | Dividend entitlement |
| 85.1 | Subject to the rights of persons (if any) entitled to Shares with special rights as to dividend, any dividend must be paid according to the amounts paid or credited as paid on the Shares in respect of which the dividend is paid. |
| 85.2 | All dividends must be apportioned and paid proportionately to the amounts paid or credited as paid on the Shares during any portion or portions of the period in respect of which the dividend is paid, but if a Share is issued on terms providing that it will rank for dividend as from a particular date, that Share ranks for dividend accordingly. |
| 85.3 | An amount paid or credited as paid on a Share in advance of a call is not to be taken as paid or credited as paid for the purposes of clauses 85.1 and 85.2. |
| 85.4 | A transfer of Shares does not pass the right to any dividend declared or determined to be payable in respect of those Shares before the registration of a transfer. |
| 86. | Deductions from dividends |
The Directors may deduct from a dividend payable to a Member all sums presently payable by the Member to the Company on account of calls or otherwise in relation to Shares in the Company.
| 87. | Distribution of assets |
| 87.1 | The Directors may resolve that a dividend (interim or final) will be paid wholly or partly by the transfer or distribution of specific assets, including fully paid shares in, or debentures of, any other corporation. |
| 87.2 | If a difficulty arises in making a transfer or distribution of specific assets, the Directors may: |
| (a) | deal with the difficulty as they consider expedient; |
| (b) | fix the value of all or any part of the specific assets for the purposes of the distribution; |
| (c) | determine that cash will be paid to any Members on the basis of the fixed value in order to adjust the rights of all the Members; and |
| (d) | vest any such specific assets in trustees as the Directors consider expedient. |
| 87.3 | If a transfer or distribution of specific assets to a particular Member or Members is illegal or, in the Directors’ opinion, impracticable, the Directors may make a cash payment to the Member or Members on the basis of the cash amount of the dividend instead of the transfer or distribution of specific assets. |
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| 88. | Payment |
| 88.1 | Any dividend or other money payable in respect of Shares may be paid by: |
| (a) | cheque sent through the mail directed to: |
| (i) | the address of the Member shown in the Register or to the address of the joint holder of Shares shown first in the Register; or |
| (ii) | an address which the Member or joint holders has in writing notified the Company as the address to which dividends should be sent; |
| 88.2 | electronic funds transfer to an account with a bank or other financial institution nominated by the Member and acceptable to the Company; or |
| 88.3 | any other means determined by the Directors. |
| 88.4 | Any joint holder may give an effectual receipt for any dividend or other money paid in respect of Shares held by holders jointly. |
| 89. | Capitalisation of profits |
| 89.1 | The Directors may resolve: |
| (a) | to capitalise profits and apply the sum capitalised; and |
| (b) | that the sum be applied, in any of the ways mentioned in clause 89.2, for the benefit of Members, or persons who have applied for Shares, in the proportions determined by the Directors. |
89.2 The ways in which a sum may be applied for the benefit of Members under clause 89.1 are:
| (a) | in paying up any amounts unpaid on Shares held or to be held by Members; |
| (b) | in paying up in full Shares or debentures to be issued to Members as fully paid; or |
| (c) | partly as mentioned in clause 89.2(a) and partly as mentioned in clause 89.2(b). |
| 89.3 | The Directors must do all things necessary to give effect to a resolution under clause 89.1 and, in particular, to the extent necessary to adjust the rights of the Members among themselves, may: |
| (a) | issue fractional certificates or make cash payments in cases where Shares or debentures become issuable in fractions; and |
| (b) | authorise any person to make, on behalf of all the Members entitled to a benefit on the capitalisation, an agreement with the Company providing for: |
| (i) | the issue to them, credited as fully paid up, of any such further Shares or debentures; or |
| (ii) | the payment by the Company on their behalf of the amount or any part of the amount remaining unpaid on their existing Shares by the application of their respective proportions of the sum resolved to be capitalised, |
and any agreement made under the authority of clause 89.3(b) is effective and binding on all the Members concerned.
Notices
| 90. | Service of notices |
| 90.1 | Notice may be given by the Company to any person who is entitled to notice under this |
Constitution by:
| (a) | serving it on the person; |
| (b) | sending it by post, facsimile transmission or electronic notification to the person at the person’s address shown in the Register or the address supplied by the person to the Company for sending notices to the person; |
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| (c) | if it is a notice of meeting, giving it in accordance with section 249J(3) of the Corporations Act; or |
| (d) | if the notice is to a Member and the Member whose address is not recorded in the Register, posting it on a noticeboard at the Company’s registered office. |
| 90.2 | A notice sent by post is taken to be served: |
| (a) | by properly addressing, prepaying and posting a letter containing the notice; and |
| (b) | on the day after the day on which it was posted. |
| 90.3 | Subject to the Corporations Act, a notice sent by facsimile transmission or electronic notification is taken to be served: |
| (a) | by properly addressing the facsimile transmission or electronic notification and transmitting it; and |
| (b) | on the day after its despatch. |
| 90.4 | A notice posted on a noticeboard at the Company’s registered office is taken to be served |
24 hours after it is posted on the board.
| 90.5 | A notice may be given by the Company to joint holders by giving the notice to the joint holder whose name appears first in the Register. |
| 90.6 | Every person who is entitled to a Share by operation of law and who is not registered as the holder of the Share is taken to receive any notice served in accordance with this clause on the person from whom it derives its title. |
| 90.7 | A Share certificate, cheque, warrant or other document may be delivered by the Company either personally or by sending it: |
| (a) | in the case of a Member whose address recorded in the Register is not in Australia, by airmail post; and |
| (b) | in any other case, by ordinary post, |
and is at the risk of the addressee as soon as it is given or posted.
| 90.8 | A Member whose address recorded in the Register is not in Australia may specify in writing an address in Australia for the purposes of clause 90. |
| 90.9 | A certificate in writing signed by a Director, Secretary or other officer of the Company that a document or its envelope or wrapper was addressed and stamped and was posted is conclusive evidence of posting. |
| 90.10 | Subject to the Corporations Act, the signature to a written notice given by the Company may be written or printed. |
| 90.11 | All notices sent by post outside Australia must be sent by prepaid airmail post. |
| 91. | Persons entitled to notice |
| 91.1 | Notice of every general meeting must be given to: |
| (a) | every Member; |
| (b) | every Director and Alternate Director; and |
| (c) | any Auditor. |
| 91.2 | No other person is entitled to receive notice of a general meeting. |
Audit and accounts
| 92. | Company to keep accounts |
The Directors must cause the Company to keep written financial records in relation to the business of the Company in accordance with the requirements of the Corporations Act.
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Winding up
| 93. | Winding up |
| 93.1 | Nothing in this clause prejudices the rights of the holders of Shares issued on special terms and conditions. |
| 93.2 | If the Company is wound up, the liquidator may, with the sanction of a special resolution of the Company: |
| (a) | divide among the Members in kind all or any of the Company’s assets; and |
| (b) | for that purpose, determine how he or she will carry out the division between the different classes of Members, |
but may not require a Member to accept any Shares or other securities in respect of which there is any liability.
| 93.3 | The liquidator may, with the sanction of a special resolution of the Company, vest all or any of the Company’s assets in a trustee on trusts determined by the liquidator for the benefit of the contributories. |
Payments by the Company
| 94. | Indemnity |
| 94.1 | To the extent permitted by law and subject to the restrictions in section 199A of the Corporations Act, the Company indemnifies every person who is or has been an officer of the Company or a subsidiary of the Company against: |
| (a) | any liability (other than a liability for legal costs); or |
| (b) | reasonable legal costs incurred in defending an action for a liability, incurred by that person as an officer of the Company or subsidiary. |
| 94.2 | The amount of any indemnity payable under clause 94.1 will include an additional amount ( GST Amount) equal to any GST payable by the officer being indemnified ( Indemnified Officer) in connection with the indemnity (less the amount of any input tax credit claimable by the Indemnified Officer in connection with the indemnity). Payment of any indemnity which includes a GST Amount is conditional upon the Indemnified Officer providing the Company with a GST tax invoice for the GST Amount. |
| 94.3 | For the purposes of this clause, officer means: |
| (a) | a Director; or |
| (b) | a Secretary. |
Execution of documents
| 95. | Execution of documents |
The Company may execute a document:
| (a) | in accordance with section 127(1) of the Corporations Act; |
| (b) | if the Company has a Seal, in accordance with section 127(2) of the Corporations Act and clauses 78, 79 and 80; or |
| (c) | in any other way approved by the Directors and permitted by law. |
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Exhibit 4.7
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into on November 25, 2019, among Albemarle Corporation, a Virginia corporation (the “Company”), Albemarle Wodgina Pty Ltd (ACN 630 509 303), a proprietary limited company incorporated under the laws of Australia and wholly-owned subsidiary of the Company (the “2029 Notes Issuer” and, together with the Company, the “Issuers”) and BofA Securities, Inc. (“BofAS”) and J.P. Morgan Securities LLC (“J.P. Morgan Securities”), acting as representatives (the “Representatives”) of the several initial purchasers listed on Schedule I hereto (the “Initial Purchasers”).
This Agreement is made pursuant to the Purchase Agreement dated November 19, 2019, among the Issuers and the Representatives on behalf of the other several Initial Purchasers (the “Purchase Agreement”), pursuant to which the Initial Purchasers have agreed to purchase the Company’s Floating Rate Notes due 2022 (the “2022 Notes”) and the 2029 Notes Issuer’s 3.450% Senior Notes due 2029 (the “2029 Notes” and, together with the 2022 Notes, the “Notes”). The Notes and the Guarantee (as defined below) are herein collectively referred to as the “Securities.”
The payment of principal of, premium, if any, and interest on the 2029 Notes and the 2029 Exchange Notes (as defined below) and the other obligations of the 2029 Notes Issuer under the Indenture (as defined below) will be fully and unconditionally guaranteed (the “Guarantee”) on a senior unsecured basis by the Company.
In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed to provide to the Initial Purchasers and their direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall have the following meanings:
“1933 Act” shall mean the Securities Act of 1933, as amended from time to time.
“1934 Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
“2022 Exchange Notes” shall mean the notes issued by the Company under the Indenture containing terms identical to the 2022 Notes (except that (x) interest thereon shall accrue from the last date on which interest was paid on the 2022 Notes or, if no such interest has been paid, from November 25, 2019 and (y) the 2022 Exchange Notes will not contain restrictions on transfer), and to be offered to Holders of the 2022 Notes in exchange for securities pursuant to the 2022 Exchange Offer.
“2029 Exchange Securities” shall mean the notes issued by the 2029 Notes Issuer and guaranteed by the Company under the Indenture containing terms identical to the 2029 Notes and the Guarantee thereof (except that (x) interest thereon shall accrue from the last date on which interest was paid on the 2029 Notes or, if no such interest has been paid, from November 25, 2019 and (y) the 2029 Exchange Securities will not contain restrictions on transfer), and to be offered to Holders of the 2029 Securities in exchange for securities pursuant to the 2029 Exchange Offer.
“Base Indenture” shall mean the indenture dated as of January 20, 2005 (as supplemented and amended prior to the Closing Date), between the Company and U.S. Bank National Association, as successor trustee to The Bank of New York Mellon Trust Company, N.A. (as successor to The Bank of New York) (the “Trustee”).
“Closing Date” shall mean the Closing Date as defined in the Purchase Agreement. “Company” shall have the meaning set forth in the preamble and shall also include the Company’s successors.
“Exchange Date” shall have the meaning set forth in Section 2(a)(ii).
“Exchange Offers” shall mean, collectively (i) the exchange offer by the Company of the 2022 Exchange Notes for 2022 Notes that are Registrable Securities pursuant to Section 2(a) hereof (the “2022 Exchange Offer”) and (ii) the exchange offer by the 2029 Notes Issuer and the Company of the 2029 Exchange Securities for 2029 Securities that are Registrable Securities pursuant to Section 2(a) hereof (the “2029 Exchange Offer”).
“Exchange Offer Registration” shall mean a registration under the 1933 Act effected pursuant to Section 2(a) hereof.
“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and all material incorporated by reference therein.
“Exchange Securities” shall mean the 2022 Exchange Notes and the 2029 Exchange Securities.
“Fifth Supplemental Indenture” shall mean the fifth supplemental indenture to the Base Indenture, to be dated as of the Closing Date, among the Company, the 2029 Notes Issuer and the Trustee.
“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.
“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of an Issuer or used or referred to by an Issuer in connection with the sale of the Securities or the Exchange Securities.
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“Holder” shall mean the Initial Purchasers, for so long as they own any Registrable Securities, and each of their respective successors, assigns and direct and indirect transferees who become registered owners of Registrable Securities under the Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the term “Holder” shall include Participating Broker-Dealers (as defined in Section 4(a)).
“Indenture” shall mean, collectively, the Fifth Supplemental Indenture and the Base Indenture. As used herein, the term “Indenture” includes the Officers’ Certificate (as defined in the Indenture) establishing the form and terms of the 2022 Notes pursuant to Section 3.01 of the Indenture.
“Initial Purchasers” shall have the meaning set forth in the preamble.
“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Securities (voting as a single class); provided that whenever the consent or approval of Holders of a specified percentage of each series of Registrable Securities is required hereunder, Registrable Securities held by the Issuers or any of their affiliates (as such term is defined in Rule 405 under the 1933 Act) (other than the Initial Purchasers or subsequent Holders of the applicable series of Registrable Securities if such subsequent holders are deemed to be such affiliates solely by reason of their holding of such Registrable Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided, further, that if the applicable Issuer shall issue any additional Securities, other than Securities issued in transactions registered under the 1933 Act, under the Indenture prior to consummation of the applicable Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained, except to the extent any provision of this Agreement expressly provides that any consent or approval be given by series of Registrable Securities.
“Participating Broker-Dealer” shall have the meaning set forth in Section 4(a).
“Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
“Prospectus” shall mean the prospectus included in (or, pursuant to the rules and regulations of the 1933 Act, deemed a part of) a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including all material incorporated or deemed by securities laws to be incorporated by reference therein.
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“Purchase Agreement” shall have the meaning set forth in the preamble.
“Registrable Securities” shall mean the Securities; provided, however, that the Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities shall have been declared effective under the 1933 Act and such Securities are exchanged for Exchange Securities in the Exchange Offers, (ii) when a Shelf Registration Statement with respect to such Securities shall have been declared effective under the 1933 Act and such Securities shall have been disposed of pursuant to such Registration Statement, (iii) when such Securities have been sold to the public pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A) under the 1933 Act or (iv) when such Securities shall have ceased to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or compliance by the Issuers with this Agreement, including without limitation: (i) all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of counsel for any underwriters or Holders in connection with blue sky qualification of any of the Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel and any depositary for book entry Securities, (vii) the fees and disbursements of counsel (including local counsel) for the Issuers and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Holders (which counsel shall be selected by the Majority Holders and reasonably satisfactory to the Issuers (which counsel may also be counsel for the Initial Purchasers)) and (viii) the fees and disbursements of the independent public accountants of the Company (and, if necessary, any other certified public accountant of any subsidiary of the Company, or of any business acquired by the Company for which financial statements and financial data are or are required to be included in the Registration Statement), including the expenses of any special audits or “comfort” letters required by or incident to such performance and compliance, but excluding fees and expenses of counsel to the underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.
“Registration Statement” shall mean any registration statement of the Issuers that covers any of the applicable Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed by securities laws to be incorporated by reference therein.
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“SEC” shall mean the Securities and Exchange Commission.
“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Issuers pursuant to the provisions of Section 2(b) of this Agreement which covers all of the Registrable Securities (but no other securities unless approved by the Holders whose Registrable Securities are covered by such Shelf Registration Statement) on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed by securities laws to be incorporated by reference therein.
“Staff” shall have the meaning set forth in Section 2(a) hereof.
“TIA” shall have the meaning set forth in Section 3 hereof.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Underwriter” shall have the meaning set forth in Section 3 hereof.
“Underwritten Registration” or “Underwritten Offering” shall mean a registration in which Registrable Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC (the “Staff”), the Issuers shall use commercially reasonable efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Issuers to the Holders to exchange all of the Registrable Securities for Exchange Securities and to have such Registration Statement remain effective until the closing of the Exchange Offers. The Issuers shall commence the Exchange Offers promptly after the Exchange Offer Registration Statement has been declared effective by the SEC and use its commercially reasonable efforts to have the Exchange Offers consummated not later than 60 days after such effective date. The Issuers shall commence the Exchange Offer by sending the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
| (i) | that the applicable Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Securities validly tendered will be accepted for exchange; |
| (ii) | the dates of acceptance for exchange (which shall be a period of at least 20 business days from the date such notice is sent, or longer if required by applicable law) (the “Exchange Dates”); |
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| (iii) | that any Registrable Security not tendered will remain outstanding and continue to accrue interest, but will not retain any rights under this Registration Rights Agreement; |
| (iv) | that Holders electing to have a Registrable Security exchanged pursuant to the applicable Exchange Offer will be required to surrender such Registrable Security, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice prior to the close of business on the last Exchange Date; provided, however, that, if any of the Registrable Securities are in book-entry form, such Prospectus and accompanying documents shall also specify how the surrender is to be effected in accordance with applicable book-entry procedures; and |
| (v) | that Holders will be entitled to withdraw their election, not later than the close of business on the last Exchange Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities of each series delivered for exchange and a statement that such Holder is withdrawing his election to have such Securities exchanged; provided, however, that, if any of the Registrable Securities are in book-entry form, any such telegram, telex, facsimile transmission or letter shall be sent in accordance with applicable book-entry procedures. |
As soon as practicable after the last Exchange Date, each Issuer shall:
(1) accept for exchange Registrable Securities of the applicable series or portions thereof tendered and not validly withdrawn pursuant to the applicable Exchange Offer; and
(2) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities of the applicable series or portions thereof so accepted for exchange by such Issuer and issue, and cause the Trustee to promptly authenticate and mail to each Holder, an Exchange Security of the applicable series equal in principal amount to the principal amount of the Registrable Securities of such series surrendered by such Holder; provided that if any of the Registrable Securities are in book-entry form, such Issuer shall, in co- operation with the Trustee, effect the exchange of Registrable Securities in accordance with applicable book-entry procedures.
The Issuers shall use their commercially reasonable efforts to complete the Exchange Offers as provided above and shall comply with the applicable requirements of the 1933 Act, the 1934 Act and other applicable laws and regulations in connection with the Exchange Offers. The Exchange Offers shall not be subject to any conditions, other than that each Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC. The Issuers shall inform the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offers are made, and the Initial Purchasers shall have the right, subject to applicable law, to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offers.
Each Holder that participates in the Exchange Offers, as a condition to participation in the Exchange Offers, will be required to represent to the applicable Issuer in writing (which may be contained in the applicable letter of transmittal) that at the time of consummation of the
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applicable Exchange Offer: (i) any Exchange Securities received in exchange for Registrable Securities tendered are being acquired in the ordinary course of business of the Person receiving such Exchange Securities; (ii) such Holder has no arrangements or understandings with any Person to participate in the distribution (within the meaning of the 1933 Act) of the Exchange Securities within the meaning of the 1933 Act; (iii) such Holder is not an “affiliate” (as defined in Rule 405 of the 1933 Act) of either Issuer; (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in a distribution of the Exchange Securities; and (v) if such Holder is a Participating Broker-Dealer, such Holder will receive Exchange Securities for its own account in exchange for Securities that were acquired as a result of market-making activities or other trading activities and that it will comply with the applicable provisions of the 1933 Act (including, but not limited to, the prospectus delivery requirements thereunder).
(b) In the event that (i) the Issuers determine that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the last Exchange Date because it would violate applicable law or the applicable interpretations of the Staff, (ii) the Exchange Offers are not for any other reason consummated on or prior to the 365th day following the Closing Date (or if such 365th day is not a Business Day, the next succeeding Business Day) or (iii) any Holder of Registrable Securities notifies the applicable Issuer that (A) it is prohibited by law or SEC policy from participating in the applicable Exchange Offer, (B) it may not resell the Exchange Securities acquired by it in the applicable Exchange Offer to the public without delivering a prospectus and the prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales, or (C) it is a broker-dealer and owns Securities acquired directly from such Issuer or an affiliate of such Issuer, then the Issuers shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or notice is given to the applicable Issuer, as the case may be, a Shelf Registration Statement providing for the sale by the Holders of all of the Registrable Securities and to have such Shelf Registration Statement declared effective by the SEC promptly. In the event the Issuers are required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (iii) of the preceding sentence, the Issuers shall use their commercially reasonable efforts to file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by the Initial Purchasers after completion of the Exchange Offers. The Issuers agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until two years from the Closing Date or such shorter period that will terminate when all of the Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement (the “Shelf Registration Period”). The Issuers further agree to supplement or amend the Shelf Registration Statement and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Issuers for such Shelf Registration Statement or by the 1933 Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective and such Shelf Registration Statement or Free Writing Prospectus to become usable as soon as thereafter practicable. The Issuers agree to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC; provided that the Issuers shall be deemed to have furnished such amendment or supplement if they shall have timely made such amendment or supplement available on “EDGAR.”
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(c) The Issuers shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement and any other expenses incurred by it that are not Registration Expenses.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or become effective automatically upon filing; provided, however, that, if, after it has been declared effective, the offering of Registrable Securities of a series pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have been effective with respect to such series during the period of such interference until the offering of Registrable Securities of such series pursuant to such Registration Statement may legally resume. In the event (1) either or both Exchange Offers are not consummated on or prior to the 365th day following the Closing Date, (2) the Shelf Registration Statement, if required pursuant to Section 2(b), is not declared effective on or prior to the 365th day following the Closing Date, or (3) in the case of a Shelf Registration Statement, it becomes effective and thereafter ceases to be effective or usable (x) at any time during the Shelf Registration Period and such failure to remain effective or usable exists for more than 30 days (whether or not consecutive) in any 12- month period or (y) on more than two occasions in any 12-month period during the Shelf Registration Period (each such event referred to in clauses (1), (2) and (3), a “Registration Default”), then with respect to the first 90-day period immediately following the occurrence of such Registration Default, the interest rate on the Registrable Securities of each series to which such Registration Default relates will be increased by 0.25% per annum and will increase by an additional 0.25% per annum on the principal amount of Registrable Securities of each such series with respect to each subsequent 90-day period, up to maximum amount of additional interest of 1.00% per annum (“Additional Interest”). Additional Interest, if any, will be paid by the applicable Issuer (or the Company pursuant to the Guarantee, if applicable) on each interest payment date to Holders of such series of Registrable Securities in the same manner as payments of interest on the Securities of the applicable series. A Registration Default ends when the Securities of the applicable series cease to be Registrable Securities or, if earlier, (i) in the case of a Registration Default under clause (1) of the definition thereof, when the applicable Exchange Offer is completed or the Shelf Registration Statement becomes effective, (ii) in the case of a Registration Default under clause (2) of the definition thereof, when the Shelf Registration Statement becomes effective or (iii) in the case of a Registration Default under clause (3) of the definition thereof, when the Shelf Registration Statement again becomes effective and usable. If at any time more than one Registration Default with respect to a series of Registrable Securities has occurred and is continuing, then, until the next date that there is no Registration Default with respect to such series, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default with respect to such series occurred and ends on such next date on which there is no Registration Default with respect to the applicable series.
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Additional Interest will accrue from and including the date of a Registration Default to, but excluding, the date on which the Registration Default has been cured in accordance with this Section 2(d).
(e) Without limiting the remedies available to the Initial Purchasers and the Holders, the Issuers acknowledge that any failure by the Issuers to comply with their respective obligations under Section 2(a) and Section 2(b) hereof may result in material irreparable injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to specifically enforce the Issuers’ respective obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
(a) In connection with the respective obligations of the Issuers with respect to the Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the Issuers shall:
| (i) | prepare and file with the SEC a Registration Statement on the appropriate form under the 1933 Act, which form (x) shall be selected by the Issuers and (y) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the selling Holders thereof and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, and each use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2 hereof; |
| (ii) | prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the 1933 Act; to keep each Prospectus current during the period described under Section 4(a)(3) and Rule 174 under the 1933 Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities; |
| (iii) | in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, to counsel for the Initial Purchasers, to counsel for the Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary or Free Writing Prospectus, and any amendment or supplement thereto and such other documents as such Holder, counsel or Underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Securities; and the Issuers each consent to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders of Registrable Securities and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus or any amendment or supplement thereto in accordance with applicable law; |
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| (iv) | use their commercially reasonable efforts to register or qualify the Registrable Securities under all applicable state securities or “blue sky” laws of such jurisdictions as any Holder of Registrable Securities covered by a Registration Statement shall reasonably request in writing by the time the applicable Registration Statement is declared effective by the SEC, to cooperate with such Holders in connection with any filings required to be made with FINRA and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that none of the Issuers shall be required to (i) qualify as a foreign corporation (or otherwise qualify to do business) or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(a)(iv), (ii) file any general consent to service of process or (iii) subject itself to taxation in any such jurisdiction if it is not so subject; |
| (v) | in the case of a Shelf Registration, notify each Holder of Registrable Securities, counsel for the Holders and counsel for the Initial Purchasers promptly and, if requested by any such Holder or counsel, confirm such advice in writing (A) when a Registration Statement has become effective and when any post-effective amendment thereto has been filed and becomes effective, or when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (B) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (C) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including any notice of objection of the SEC to the use of a Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g) under the 1933 Act, (D) if, between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of any of the Issuers contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the offering cease to be true and correct in all material respects or if any of the Issuers receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (E) of the happening of any event during the period a Shelf Registration Statement is effective which makes any statement made in such Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or which requires the making of any changes in such Registration Statement or Prospectus or Free Writing Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (F) of any determination by any of the Issuers that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate; |
| (vi) | make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or the resolution of any objection of the SEC pursuant to Rule 401(g) under the 1933 Act at the earliest possible moment and provide immediate notice to each Holder of the withdrawal of any such order or such resolution; |
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| (vii) | in the case of a Shelf Registration, furnish to each Holder of Registrable Securities, without charge, at least one conformed copy of each Registration Statement and any post- effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested); provided, that the Issuers shall be deemed to have furnished such Registration Statement and any post-effective amendment if such Registration Statement or post-effective amendment shall have been timely made available on “EDGAR”; |
| (viii) | in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders may reasonably request at least one business day prior to the closing of any sale of Registrable Securities; |
| (ix) | upon the occurrence of any event contemplated by Section 3(a)(v)(E) hereof, use their commercially reasonable efforts to prepare and file with the SEC a supplement or post- effective amendment to a Registration Statement, the related Prospectus, any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Issuers agree to notify the Holders and any Participating Broker-Dealers and to suspend use of the Prospectus or any Free Writing Prospectus, as applicable, as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend use of the Prospectus or Free Writing Prospectus, as the case may be, until the Issuers have amended or supplemented the Prospectus or the Free Writing Prospectus to correct such misstatement or omission; |
| (x) | a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or Free Writing Prospectus or any document which is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial filing of a Registration Statement, provide copies of such document to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) and make such of the representatives of the Issuers as shall be reasonably requested by the Initial Purchasers or their counsel (and, in the case of a Shelf Registration Statement, the Holders or their counsel) available for discussion of such document, and shall not at any time file or make any amendment to any Registration Statement, any Prospectus, any Free Writing Prospectus or any amendment of or supplement to a Registration Statement, a Prospectus, any Free Writing Prospectus or any document which is to be incorporated by reference into a Registration Statement or a Prospectus or Free Writing Prospectus, of which the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel) shall not have previously been advised and furnished a copy or to which the Initial Purchasers or their counsel (and, in the case of a Shelf |
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| Registration Statement, the Holders or their counsel) shall object, except for any amendment or supplement or document (a copy of which has been previously furnished to the Initial Purchasers and their counsel (and, in the case of a Shelf Registration Statement, the Holders and their counsel)) which counsel to the Company shall advise the Issuers in writing is required in order to comply with applicable law; |
| (xi) | obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the effective date of a Registration Statement; |
| (xii) | cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and execute, and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner; |
| (xiii) | in the case of a Shelf Registration, make available for inspection by a representative of the Holders of the Registrable Securities, any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Majority Holders, at reasonable times and in a reasonable manner, all financial and other records, pertinent documents and properties of the Issuers and cause the respective officers, directors and employees of the Issuers to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; |
| (xiv) | in the case of a Shelf Registration, use their commercially reasonable efforts to cause all Registrable Securities of a series to be listed on any securities exchange or any automated quotation system on which the Securities of such series are then listed if requested by the Majority Holders (determined for this purpose based on the outstanding aggregate principal amount of Registrable Securities of such series), to the extent such Registrable Securities satisfy applicable listing requirements; |
| (xv) | use their commercially reasonable efforts to cause the Exchange Securities or Registrable Securities of a series, as the case may be, to be rated by two nationally recognized statistical rating organizations (as such term is defined in Section 3(a)(62) of the 1934 Act), to the extent such agencies rate the Securities of such series; |
| (xvi) | if reasonably requested by any Holder of Registrable Securities covered by a Shelf Registration Statement, (i) promptly incorporate in a Prospectus supplement or post- effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as the Issuers have received notification of the matters to be incorporated in such filing; |
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| (xvii) | to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the applicable Issuer with the SEC in accordance with the Securities Act and to retain (in accordance with the requirements of the Securities Act) any Free Writing Prospectus not required to be filed; and |
| (xviii) | in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Securities with respect to (A) the business of the Company and its subsidiaries, the Registration Statement, Prospectus, Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by the Company in underwritten offerings and (B) the 2029 Notes Issuer as are set forth in the Purchase Agreement and, in each case, confirm the same if and when requested, (ii) obtain customary opinions of counsel to the Company (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (iii) obtain “comfort” letters from the independent certified public accountants of the Company addressed to each selling Holder and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, and (iv) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Issuers made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in an underwriting agreement. |
(b) In the case of a Shelf Registration Statement, the Issuers may require each Holder of Registrable Securities to furnish to the Issuers such information regarding the Holder and the proposed distribution by such Holder of such Registrable Securities as the Issuers may from time to time reasonably request in writing.
(c) In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any notice from the Issuers of the happening of any event of the kind described in Section 3(a)(v)(E) hereof, such Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus or Free Writing Prospectus contemplated by Section 3(a)(ix) hereof, and, if so directed by the applicable Issuer, such Holder will deliver to such Issuer (at its expense) all copies in its possession, other than permanent file copies then in such Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities current at the time of receipt of such notice. If the applicable Issuer shall give any notice in accordance with this Agreement to suspend the disposition of Registrable
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Securities of the applicable series pursuant to a Registration Statement, such Issuer shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such dispositions. Each of the Issuers may give any such notice only upon reasonable determination that such suspension is appropriate in light of the event giving rise to such suspension and shall use commercially reasonable efforts to file such amendments or supplements or take other steps necessary to resume dispositions as soon as reasonably practicable, in such Issuer’s determination.
(d) The Holders of Registrable Securities covered by a Shelf Registration Statement who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the “Underwriters”) that will administer the offering will be selected by the Majority Holders of the Registrable Securities included in such offering and shall be reasonably acceptable to the Issuers.
(e) No Holder of Registrable Securities may participate in any Underwritten Offering hereunder unless such Holder (i) agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, custody agreements, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating Broker-Dealer”), may be deemed to be an “underwriter” within the meaning of the 1933 Act and must deliver a prospectus meeting the requirements of the 1933 Act in connection with any resale of such Exchange Securities.
The Issuers understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker- Dealers to satisfy their prospectus delivery obligation under the 1933 Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above, and notwithstanding the other provisions of this Agreement, each of the Issuers agrees to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the last Exchange Date (as such period may be extended pursuant to Section 3(c)), if requested by one or more
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Participating Broker-Dealer, in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above. Each of the Issuers further agrees that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Issuers or any Holder with respect to any request that they may make pursuant to Section 4(b) above.
5. Indemnification and Contribution.
(a) Each of the Issuers jointly and severally agree to indemnify and hold harmless the Initial Purchasers and Holders, their affiliates, directors and officers and each Person, if any, who controls any Initial Purchaser or any Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under common control with, or is controlled by, any Initial Purchaser or any Holder, from and against all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by the foregoing indemnified persons in connection with defending or investigating any such action or claim) that arise out of, or are based on, any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment thereto) pursuant to which Exchange Securities or Registrable Securities were registered under the 1933 Act, including all documents incorporated therein by reference, or that arise out of, or are based on, any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that arise out of, or are based on, any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or Free Writing Prospectus (as amended or supplemented if any of the Issuers shall have furnished any amendments or supplements thereto), or that arise out of, or are based on, any omission or alleged omission to state therein a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based on, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with information relating to any Initial Purchaser or any Holder furnished to any Issuer in writing through the Representatives or any selling Holder expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, each of the Issuers will also, jointly and severally, indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the 1933 Act and the 1934 Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless each of the Issuers, the Initial Purchasers and their affiliates and the other selling Holders, and each of their respective directors and officers who sign the Registration Statement and each Person, if any, who controls any of the Issuers, any Initial Purchaser and any other selling Holder within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Issuers to the Initial Purchasers and the Holders, but only to the extent such losses, claims, damages and liabilities arise out of, or are
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based on, any untrue statement or omission or alleged untrue statement or omission based upon and in conformity with any information relating to such Holder furnished to the Issuers in writing by such Holder expressly for use in any Registration Statement (or any amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any Person in respect of which indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above, such Person (the “indemnified party”) shall promptly notify the Person against whom such indemnity may be sought (the “indemnifying party”) in writing (provided that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under paragraphs (a) and (b) of this Section 5 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under paragraphs (a) and (b) of this Section 5); and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party (who shall not, without the consent of the indemnified party, be counsel to the indemnifying party) to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party, or (iv) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Initial Purchasers and all Persons, if any, who control any Initial Purchaser within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Issuers and their respective directors and officers who sign the Registration Statement and each Person, if any, who controls any of the Issuers within the meaning of either such Section and (c) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Holders and all Persons, if any, who control any Holder within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In such case involving the Initial Purchasers and Persons who control the Initial Purchasers, such firm shall be designated in writing by the Representatives. In such case involving the Holders and such Persons who control Holders, such firm shall be designated in writing by the Majority Holders. In all other cases, such firm shall be designated by the Issuers. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which such indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party in form and
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substance reasonably satisfactory to such indemnified party from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any indemnified person; provided that if any such proceeding or threatened proceeding is settled with such written consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify each indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party reimburse the indemnified person for fees and disbursements of counsel as contemplated by this paragraph, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying party of such request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in paragraph (a) or paragraph (b) of this Section 5 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuers from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the 1933 Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuers on the one hand and of the Holders on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Issuers, on the one hand, and the Holders, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuers, on the one hand, or by the Holders, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders’ respective obligations to contribute pursuant to this Section 5(d) are several in proportion to the respective principal amount of Registrable Securities of such Holder that were registered pursuant to a Registration Statement.
(e) Each of the Issuers, on the one hand, and each Holder, on the other hand, agree that it would not be just or equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 5, no Holder shall be required to indemnify or contribute any amount in excess of the amount by which the total price at which Registrable Securities were sold by such Holder
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exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Initial Purchasers or any of their affiliates, any Holder or any Person controlling any Initial Purchaser or any Holder, or by or on behalf of any of the Issuers or their respective officers or directors or any Person controlling any of the Issuers, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Issuers represents and agrees that (i) it has not entered into, and on or after the date of this Agreement will not enter into, any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof; and (ii) the rights granted to the Holders hereunder do not and will not in any way conflict with and are and will not be inconsistent with the rights granted to the holders of any of the Issuers’ other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities (voting as a single class) affected by such amendment, modification, supplement, waiver or consent; provided, however, that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier, electronic mail or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to the Initial Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the Issuers, initially at the Company’s address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c).
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All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five business days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied or emailed; and on the next business day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. The Initial Purchasers (in their capacity as Initial Purchasers) shall have no liability or obligation to any of the Issuers with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Securities. None of the Issuers shall, and each shall use their commercially reasonable efforts to cause their affiliates (as defined in Rule 405 under the 1933 Act) not to, purchase and then resell or otherwise transfer any Securities.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries to the agreements made hereunder between the Issuers, on the one hand, and the Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent they deem such enforcement necessary or advisable to protect their rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the
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exclusive jurisdiction of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such party’s address as provided above shall be effective service of process for any Related Proceeding brought in any Specified Court. To the fullest extent permitted by applicable law, parties irrevocably and unconditionally waive any objection to the laying of venue of any Specified Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement. The 2029 Notes Issuer irrevocably appoints Corporation Service Company at 1180 Avenue of the Americas, Suite 210, New York, New York 10036-8401 as its agent to receive service of process or other legal summons for purposes of any Related Proceeding that may be instituted in any Specified Court.
(j) Waiver of Immunity. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts or any court of Australia or any political subdivision thereof, and with respect to any judgment of any Specified Court in a Related Proceeding, each party waives any such immunity in the Specified Courts, any court of Australia or any political subdivision thereof or any other court of competent jurisdiction, as applicable, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
(k) Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than U.S. dollars, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Initial Purchasers could purchase U.S. dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligations of the Issuers in respect of any sum due from them to any Initial Purchaser shall, notwithstanding any judgment in any currency other than U.S. dollars, not be discharged until the first business day, following receipt by such Initial Purchaser of any sum adjudged to be so due in such other currency, on which (and only to the extent that) such Initial Purchaser may in accordance with normal banking procedures purchase U.S. dollars with such other currency; if the U.S. dollars so purchased are less than the sum originally due to such Initial Purchaser hereunder, each of the Issuers agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Initial Purchaser against such loss. If the U.S. dollars so purchased are greater than the sum originally due any Initial Purchaser or Holder hereunder, such Initial Purchaser or Holder agrees to pay to the Issuers (but without duplication) an amount equal to the excess of the U.S. dollars so purchased over the sum originally due to such Initial Purchaser hereunder.
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(l) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
[Signature Page Follows]
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| Very truly yours, | ||
| ALBEMARLE CORPORATION | ||
| By: | /s/ Karen G. Narwold | |
| Name: | Karen G. Narwold | |
| Title: | Executive Vice President, Chief Administrative Officer and Corporate Secretary | |
[Signature Page to Registration Rights Agreement]
| Executed by Albemarle Wodgina Pty Ltd in accordance with Section 127 of the Corporations Act 2001 |
||||
| /s/ Karen G. Narwold |
/s/ Mathew Shane Zauner | |||
| Signature of director | Signature of company secretary (Please delete as applicable) | |||
| Karen G. Narwold |
Mathew Shane Zauner | |||
| Name of director (print) | Name of company secretary (print) | |||
[Signature Page to Registration Rights Agreement]
Accepted as of the date first written above
BOFA SECURITIES, INC.
J.P. MORGAN SECURITIES LLC
Acting severally on behalf of themselves
and the several Initial Purchasers listed in Schedule 1 hereto
BOFA SECURITIES, INC.
| By: | /s/ Sandeep Chawla | |
| Managing Director |
[Signature Page to Registration Rights Agreement]
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Som Bhattacharyya | |
| Authorized Signatory | ||
| Som Bhattacharyya | ||
| Executive Director | ||
[Signature Page to Registration Rights Agreement]
SCHEDULE I
INITIAL PURCHASERS
BofA Securities, Inc.
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
MUFG Securities Americas Inc.
Mizuho Securities USA LLC
HSBC Securities (USA) Inc.
SMBC Nikko Securities America, Inc.
U.S. Bancorp Investments, Inc.
Siebert Williams Shank & Co., LLC
Santander Investment Securities Inc.
SunTrust Robinson Humphrey, Inc.
Exhibit 5.1
599 LEXINGTON AVENUE
NEW YORK, NY 10022-6069
+1.212.848.4000
June 10, 2020
Albemarle Corporation
4250 Congress Street, Suite 900
Charlotte, North Carolina 28209
Albemarle Wodgina Pty Ltd
Level 3, 25 National Circuit
Forrest, ACT 2603, Australia
Albemarle Corporation
Albemarle Wodgina Pty Ltd
Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel to Albemarle Corporation, a Virginia corporation (“Albemarle” or the “Company”) and Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia and a wholly owned subsidiary of Albemarle (“Wodgina” and together with Albemarle, the “issuers”) in connection with the preparation and filing by the issuers of a registration statement on Form S-4 (the “Registration Statement”) with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance of Albemarle’s Floating Rate Notes due 2022 (the “2022 Exchange Notes”) and Wodgina’s 3.450% Senior Notes due 2029 (the “2029 Exchange Notes” and together with the 2022 Exchange Notes, the “Exchange Notes”) and the full and unconditional guarantees, on a senior unsecured basis, as to the payment of principal and interest on the 2029 Exchange Notes (the “2029 Exchange Note Guarantees”) by Albemarle.
Pursuant to the prospectus forming a part of the Registration Statement (the “Prospectus”) Albemarle is offering to exchange (the “2022 Exchange Notes Offer”) up to $200,000,000 aggregate principal amount of its 2022 Exchange Notes for a like amount of its outstanding Floating Rate Notes due 2022 issued on November 25, 2019 (the “2022 Restricted Notes”), which have not been registered under the Securities Act and Wodgina is offering to exchange (the “2029 Exchange Notes Offer”) up to $300,000,000 aggregate principal amount of its 2029 Exchange Notes for a like amount of its outstanding 3.450% Senior Notes due 2029 issued on November 25, 2019 (the “2029 Restricted Notes”), which have not been registered under the Securities Act, and Albemarle is offering to exchange (the “2029 Exchange Note Guarantees Offer” and together with the 2022 Exchange Notes Offer and the 2029 Exchange Notes Offer, the “Exchange Offers”) the 2029 Exchange Note Guarantees for the full and unconditional guarantees, on a senior unsecured basis, as to the payment of principal and interest on the 2029 Restricted Notes by Albemarle.
The 2022 Exchange Notes, the 2029 Exchange Notes and the 2029 Exchange Note Guarantees will be registered under the Securities Act as set forth in the Registration Statement and will be issued upon consummation of the Exchange Offers pursuant to the Indenture dated as of January 20, 2005, as supplemented by the third supplemental indenture dated as of November 24, 2014 and a fifth supplemental indenture dated as of November 25, 2019, by and among Albemarle, as issuer of the 2022 Restricted Notes and as guarantor of the 2029 Restricted Notes, Wodgina, as issuer of the 2029 Exchange Notes, and U.S. Bank National Association, as trustee (the “Trustee”) (as amended and supplemented, the “Indenture”).
In our capacity as counsel to Albemarle and Wodgina, we have reviewed originals or copies of the following documents:
| (a) | The Indenture (including the 2029 Exchange Note Guarantees contained therein). |
| (b) | The 2022 Exchange Notes in global form to be executed by Albemarle. |
| (c) | The 2029 Exchange Notes in global form to be executed by Wodgina. |
The documents described in the foregoing clauses (a) through (c) are collectively referred to herein as the “Opinion Documents.”
We have also reviewed the following:
| (a) | The Registration Statement. |
| (b) | The Prospectus. |
| (c) | The Registration Rights Agreement, dated as of November 25, 2019 by and among Albemarle, Wodgina and BofA Securities, Inc. and J.P. Morgan Securities LLC, as representative of the several initial purchasers named therein, relating to the 2022 Restricted Notes and the 2029 Restricted Notes. |
| (d) | Originals or copies of such other records of Albemarle and Wodgina, certificates of public officials and officers of the issuers and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below. |
In our review of the Opinion Documents and other documents, we have assumed:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity of the originals of the documents submitted to us. |
| (c) | The conformity to authentic originals of any documents submitted to us as copies. |
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| (d) | As to matters of fact, the truthfulness of the representations made in the Opinion Documents and in certificates of public officials and officers of the Company and Wodgina. |
| (e) | That each of the Opinion Documents is the legal, valid and binding obligation of each party thereto, other than the Company and Wodgina, enforceable against each such party in accordance with its terms. |
| (f) | That: |
| (i) | Each of the Company and Wodgina is an entity duly organized and validly existing under the laws of the jurisdiction of its organization. |
| (ii) | Each of the Company and Wodgina has power and authority (corporate or otherwise) to execute, deliver and perform, and has duly authorized, executed and delivered (except to the extent Generally Applicable Law (as defined below) is applicable to such execution and delivery), the Opinion Documents to which it is a party. |
| (iii) | The execution, delivery and performance by the Company and Wodgina of the Opinion Documents to which it is a party do not and will not: |
| (A) | contravene its certificate or articles of incorporation, by-laws, constitution or other organizational documents; or |
| (B) | except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it. |
| (g) | That the execution, delivery and performance by the Company and Wodgina of the Opinion Documents to which it is a party do not and will not result in any conflict with or breach of any agreement or document binding on it. |
| (h) | That, except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Company and Wodgina of any Opinion Document to which it is a party or, if any such authorization, approval, consent, action, notice or filing is required, it has been duly obtained, taken, given or made and is in full force and effect. |
We have not independently established the validity of the foregoing assumptions.
“Generally Applicable Law” means the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, Wodgina, the Opinion Documents or the transactions governed by the Opinion Documents. Without limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally
3
Applicable Law” does not include any law, rule or regulation that is applicable to the Company, Wodgina, the Opinion Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Opinion Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
Based upon the foregoing and upon such other investigation as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
| 1. | When the 2022 Exchange Notes have been executed and delivered by Albemarle, to the extent the execution and delivery is a matter of New York law, and authenticated by the Trustee in accordance with the terms of the Indenture, and when issued upon consummation of the Exchange Offers as set forth in the Registration Statement, the 2022 Exchange Notes will be the legal, valid and binding obligations of Albemarle. |
| 2. | When the 2029 Exchange Notes have been executed and delivered by Wodgina, to the extent the execution and delivery is a matter of New York law, and authenticated by the Trustee in accordance with the terms of the Indenture, and when issued upon consummation of the Exchange Offers as set forth in the Registration Statement, the 2029 Exchange Notes will be the legal, valid and binding obligations of Wodgina. |
| 3. | When the 2029 Exchange Note Guarantees have been duly executed and delivered by Albemarle, to the extent such execution and delivery is a matter of New York law, upon consummation of the Exchange Offers as set forth in the Registration Statement, the 2029 Exchange Note Guarantees will be the legal, valid and binding obligations of Albemarle. |
Our opinions expressed above are subject to the following qualifications:
| (a) | Our opinions are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers). |
| (b) | Our opinions are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
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We understand that this opinion is to be used in connection with the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of our name in the Prospectus contained therein under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations promulgated thereunder.
Very truly yours,
/s/ Shearman & Sterling LLP
LLJ/RDG/GHL
JD
5
Exhibit 5.2
|
HUNTON ANDREWS KURTH LLP FILE NO: 048362.0000001 |
|||||
|
June 10, 2020 |
Albemarle Corporation
4250 Congress Street, Suite 900
Charlotte, North Carolina 28209
Albemarle Corporation
Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as special Virginia counsel for Albemarle Corporation, a Virginia corporation (the “Company”), in connection with the filing of a Registration Statement on Form S-4 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), to register (i) $200,000,000 aggregate principal amount of the Company’s Floating Rate Notes due 2022 (the “Exchange Notes”) and (ii) the unconditional guarantee by the Company of $300,000,000 aggregate principal amount of the 3.450% Senior Notes due 2029 (the “Exchange Guarantee”) issued by the Company’s wholly-owned subsidiary, Albemarle Wodgina Pty Ltd., a proprietary limited liability company incorporated under the laws of Australia (“Wodgina”). The Exchange Notes and the Exchange Guarantee are to be issued in the exchange offer described in the Registration Statement (the “Exchange Offer”) for an equal aggregate principal amount of the Company’s Floating Rate Notes due 2020 (the “Restricted Notes”) and the unconditional guarantee of Wodgina’s 3.450% Senior Notes due 2029 (the “Restricted Guarantee”), each of which were issued in reliance on an exemption from registration under the Securities Act for offers and sales of securities not involving public offerings. The Restricted Notes and the Restricted Guarantee were, and the Exchange Notes and Exchange Guarantee will be, issued pursuant to the terms of the Indenture (as defined below). The terms of the Exchange Offer are described in the Registration Statement.
This opinion letter is being furnished in accordance with the requirements of Item 21 of Form S-4 and Item 601(b)(5)(i) of Regulation S-K.
In connection with this opinion letter, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following:
| (1) | the Registration Statement; |
| (2) | the indenture dated as of January 20, 2005, between the Company and U.S. Bank National Association, as successor to The Bank of New York Mellon Trust Company, N.A. (formerly The Bank of New York), as trustee (the “Trustee”), as supplemented by a fifth supplemental indenture (as so supplemented, the “Indenture”), dated as of November 25, 2019, among the Company, Wodgina and the Trustee; |
ATLANTA AUSTIN BANGKOK BEIJING BOSTON BRUSSELS CHARLOTTE DALLAS DUBAI HOUSTON LONDON
LOS ANGELES MIAMI NEW YORK NORFOLK RICHMOND SAN FRANCISCO THE WOODLANDS TYSONS WASHINGTON, DC
www.HuntonAK.com
Albemarle Corporation
June 10, 2020
Page 2
| (3) | the form of the Exchange Notes; |
| (4) | the form of the Exchange Guarantee; |
| (5) | the Company’s Articles of Incorporation, as amended through the date hereof, |
| (6) | the Company’s Amended and Restated Bylaws, as amended through the date hereof; |
| (7) | the resolutions of the Company’s Board of Directors; |
| (8) | a certificate issued by the Clerk of the State Corporation Commission of the Commonwealth of Virginia on the date hereof to the effect that the Company is existing under the laws of the Commonwealth of Virginia and in good standing (the “Good Standing Certificate”); and |
| (9) | a certificate of the secretary of the Company, dated as of the date hereof with respect to certain facts related to the Company and its corporate records (the “Secretary’s Certificate”). |
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records, certificates of officers of Albemarle and Wodgina and public officials and such other documents as we have deemed necessary for the purposes of rendering this opinion letter.
For purposes of the opinions expressed below, we have assumed: (a) the authenticity of all documents submitted to us as originals; (b) the conformity to the originals of all documents submitted to us as certified, photostatic or electronic copies and the authenticity of the originals thereof; (c) the legal capacity of natural persons; (d) the genuineness of all signatures and the completion of all deliveries not witnessed by us; and (e) the due authorization, execution and delivery of all documents by all parties and the validity, binding effect and enforceability thereof (other than the due authorization, execution and delivery of the Exchange Notes and the Exchange Guarantee, as applicable, by Albemarle as to which we express our opinion in paragraph 3 below).
Albemarle Corporation
June 10, 2020
Page 3
As to factual matters, we have relied upon (a) the documents furnished to us by Albemarle and Wodgina, (b) the statements and representations of officers and representatives of Albemarle and Wodgina, (c) the corporate records provided to us by such officers or representatives and (d) certificates and other documents obtained from public officials, without independent verification of their accuracy.
We do not purport to express an opinion on any laws other than the laws of the Commonwealth of Virginia.
Based upon the foregoing and such other information and documents as we have considered necessary for the purposes hereof, and subject to the assumptions, qualifications and limitations noted herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good standing under the laws of the Commonwealth of Virginia with the corporate power and authority to issue the Exchange Notes and the Exchange Guarantee.
2. The Indenture has been duly authorized, executed and delivered by the Company.
3. The Exchange Notes and the Exchange Guarantee have been duly authorized by the Company.
The opinion set forth in paragraph 1 above as to the valid existence and good standing of the Company is based solely upon our review of the Good Standing Certificate and the Secretary’s Certificate.
We consent to the filing of this opinion letter with the Commission as Exhibit 5.2 to the Registration Statement and the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission.
This opinion letter is rendered as of the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments that hereafter may be brought to our attention and that may alter, affect or modify the opinions expressed herein. Our opinions are expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any matters beyond the matters expressly set forth herein.
| Very truly yours, |
| /s/ Hunton Andrews Kurth LLP |
Exhibit 5.3
10 June 2020
| To: The Directors Albemarle Wodgina Pty Ltd c/o Minter Ellison Level 3, 25 National Circuit Forrest Canberra 2603 Australia |
Albemarle Wodgina Pty Ltd ACN 630 509 303 – Registration Statement on Form S-4
| 1. | Background |
| 1.1 | We have acted as Australian legal counsel to Albemarle Wodgina Pty Ltd (Company), a company incorporated under the laws of the Commonwealth of Australia, in connection with its filing of a registration statement on Form S-4 (Registration Statement) under the U.S. Securities Act of 1933, as amended (Securities Act) with the U.S. Securities and Exchange Commission (Commission). |
| 1.2 | The Registration Statement relates to the issuance of the Company’s $US300,000,000 registered 3.450% Senior Notes due 2029 (Exchange Notes). |
| 1.3 | Pursuant to the prospectus forming a part of the Registration Statement (Prospectus), the Company is offering to exchange all of its outstanding unregistered 3.450% Senior Notes due 2029 (Restricted Notes) for an equivalent principal amount of its Exchange Notes. |
| 2. | Documents examined and searches made |
| 2.1 | For the purposes of this opinion, we have examined and relied on copies of the following documents: |
| (a) | the Registration Statement, in the form received by us via email from Robert D. Giannattasio of Shearman & Sterling LLP on 9 June 2020 at approximately 2.13pm (Sydney time); |
| (b) | the Exchange Notes, in the form received by us via email from Robert D. Giannattasio of Shearman & Sterling LLP on 9 June 2020 at approximately 2.13pm (Sydney time); |
| (c) | each of: |
| (i) | the certificate of registration; and |
| (ii) | the constitution of the Company (Constitution); and |
| (d) | the circular resolutions of the board of directors of the Company dated 1 June 2020. |
| 2.2 | We have also reviewed the following: |
| (a) | the document entitled ‘Indenture’ dated as of 20 January 2005 between Albemarle Corporation and U.S. Bank National Association, as successor to The Bank of New York Mellon Trust Company, N.A. (formerly The Bank of New York), as trustee (Trustee), as supplemented most recently by the Indenture Supplement (Indenture); |
| (b) | the document entitled ‘Fifth Supplement Indenture’ between, amongst others, the Company and the Trustee dated 25 November 2019 (Indenture Supplement); and |
| (c) | the document entitled ‘Registration Rights Agreement’ between, amongst others, the Company dated 25 November 2019 (Registration Rights Agreement), (together with the Exchange Notes, the Transaction Documents). |
| Level 40 Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000 AUSTRALIA DX 117 Sydney |
| 2.3 | We have relied on: |
| (a) | a search of the publicly available electronic register of the Company available on the on-line database of Australian Securities and Investments Commission (ASIC) at 2.29pm (Sydney time) on 9 June 2020. ASIC does not warrant the correctness of the information contained in this database; and |
| (b) | a search of the Company on the publicly available electronic Insolvency Notices register at approximately 2.29pm (Sydney time) on 9 June 2020. The Insolvency Notices register operates independently from the register referred to above in paragraph 2.3(a). |
| 2.4 | We have not made any other searches or enquiries. |
| 3. | Definitions and interpretation |
| 3.1 | In this opinion: |
| (a) | Corporations Act means the Corporations Act 2001 (Cth); |
| (b) | External Administrator means an administrator, controller (as defined in the Corporations Act), receiver, receiver and manager, trustee, provisional liquidator, liquidator or any other person (however described) holding or appointed to an analogous office or acting or purporting to act in an analogous capacity; |
| (c) | Insolvency Event means, in respect of a person, any of the following occurring (in this definition, unless otherwise stated, all section numbers are references to sections in the Corporations Act): |
| (i) | it becomes insolvent within the meaning of section 95A, or is taken to have failed to comply with a statutory demand under section 459F(1), or must be presumed by a court to be insolvent under section 459C(2), or is the subject of a circumstance specified in section 461 (whether or not an application to court has been made under that section) or, if the person is a Part 5.7 body, is taken to be unable to pay its debts under section 585; |
| (ii) | it is the subject of a Liquidation, or an order or an application is made for its Liquidation; |
| (iii) | an effective resolution is passed or meeting summoned or convened to consider a resolution for its Liquidation; |
| (iv) | an External Administrator is appointed to it or any of its assets or a step is taken to do so; |
| (v) | if a registered corporation under the Corporations Act, a step is taken under section 601AA, 601AB or 601 AC to cancel its registration; or |
| (vi) | an analogous or equivalent event to that event listed above occurs in any jurisdiction; |
| (d) | Liquidation means a winding up, dissolution, liquidation, provisional liquidation, administration, bankruptcy or other proceeding for which an External Administrator is appointed, or an analogous or equivalent event or proceeding in any jurisdiction; and |
| (e) | Relevant Jurisdiction means the state of Western Australia, and a reference to laws of the Relevant Jurisdictions includes a reference to applicable laws of the Commonwealth of Australia in force in the Relevant Jurisdictions. |
| 3.2 | Subject to paragraph 3.1, capitalised terms defined in the Transaction Documents have the same meanings when used in this opinion. |
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| 4. | Assumptions |
This opinion is based on the following assumptions:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity and completeness of all documents submitted to us as originals. |
| (c) | All documents submitted to us as copies conform with the originals, and all copy documents are complete and up to date. |
| (d) | All relevant original documents continue in full force and effect and all signatures, seals, dates, duty stamps and markings appearing on all documents and copy documents submitted to us are genuine. |
| (e) | The execution, delivery or performance of any document by any party to the document does not violate or contravene, and is not rendered invalid, not binding or unenforceable under, any applicable law under any jurisdiction (other than to the extent opined upon in this opinion). |
| (f) | The execution by the Company of any relevant document, and the incurring of liabilities and obligations under such document, are bona fide in the interests of the Company, and for a commercial benefit which is commensurate with the obligations of the Company under the document. |
| (g) | All public records and searches which we have examined are accurate, and the information disclosed by the searches conducted by us is true and complete, and such information has not since been altered, and the searches did not fail to disclose any information which had been delivered for registration, lodgement or filing against the Company’s records but which did not appear on the public records at the date of our search. |
| (h) | The procedures for the creation of Exchange Notes, and their exchange for the Restricted Notes, set out in the Transaction Documents will be accurately and properly complied with (other than in respect of the matters specifically opined on in this opinion). |
| (i) | Any Exchange Note that is in registered form will be registered, in the manner contemplated by the Indenture. |
| (j) | The Transaction Documents do or will constitute legal, valid, binding and enforceable obligations of the parties to them under all applicable law (other than to the extent opined upon in this opinion). |
| (k) | The Company was solvent at all relevant times, and no Insolvency Event has occurred in respect of the Company. |
| (l) | The assumptions contained in section 129 of the Corporations Act with respect to the Company. |
| 5. | Opinion |
| 5.1 | Based on our review of the Transaction Documents, and the assumptions in paragraph 4 and the qualifications in paragraph 6, we are of the opinion that: |
| (a) | The Company is duly incorporated and validly existing under the laws of the Commonwealth of Australia and taken to be registered in the State of Western Australia. The searches of the public records of the Company available on the on-line database of ASIC and the Insolvency Notices register referred to in paragraph 2.2 do not disclose any Insolvency Event. |
| (b) | The Company has full capacity and all requisite corporate power and authority to issue the Exchange Notes and exchange the Exchange Notes for any or all of the Restricted Notes, and to perform its obligations under them. The Company has full capacity and all requisite corporate power and authority to own and lease its property and to conduct the business in which it is engaged as described in the Registration Statement. |
Page 3
| (c) | The execution and issue of the Exchange Notes have been duly authorised by all necessary corporate action on the part of the Company and when executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Indenture, and when issued upon consummation of the exchange offers as set forth in the Registration Statement, the Exchange Notes will be the legal, valid and binding obligations of the Company. |
| 5.2 | This opinion is deemed to be given as at the date of the effectiveness of the Registration Statement and will speak as at that date and we do not undertake any obligation to advise you of any changes (including but not limited to any subsequently enacted, published or reported laws, regulations or binding authority) that may occur or come to our attention after the date of this letter which may affect our opinion. |
| 6. | Qualifications |
This opinion is subject to the following qualifications:
| (a) | A statement that an obligation is ‘binding’ or ‘enforceable’ means that the obligation is of a type and form that courts of the Relevant Jurisdictions will generally enforce. It does not mean that the obligation can be enforced in all circumstances. For example: |
| (i) | equitable remedies, such as injunction and specific performance, are discretionary; |
| (ii) | enforceability may be affected by laws relating to insolvency or other laws that affect creditors’ rights generally; and |
| (iii) | enforceability may be affected by general law doctrines or statutory relief in relation to matters such as fraud, misrepresentation, mistake, duress, unconscionable conduct, frustration, estoppel, waiver, lapse of time, penalties, courts retaining their ability to adjudicate, public policy or illegality. |
| (b) | This opinion, which is governed by and to be interpreted in accordance with, the laws of the Relevant Jurisdictions, is given only with respect to the laws of the Relevant Jurisdictions in effect on the date of this opinion. We have not investigated and do not express any opinion as to the laws of any other jurisdiction. |
| (c) | We express no view on any matter requiring skill or expertise of a non-legal nature, such as financial, statistical, accounting, commercial or actuarial matters. We also express no opinion on any taxation matters. |
| (d) | This opinion is limited to the matters stated in this letter, and no opinion is implied or may be inferred beyond the matters expressly stated. |
| 7. | Benefit of opinion |
| 7.1 | This opinion is addressed to you personally. It may not be relied upon by anyone else for any purpose whatsoever without our prior written consent. |
| 7.2 | We consent to the use of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the US Securities Act of 1933 (as amended) and the rules and regulations promulgated thereunder. |
MinterEllison
/s/ John Elias
John Elias
Partner
Contact: Jonathan Maher T: +61 2 9921 4771
jonathan.maher@minterellison.com
Partner: John Elias T: +61 2 9921 4115
OUR REF: JIM JEE 1276782
Page 4
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on S-4 of Albemarle Corporation of our report dated February 26, 2020 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Albemarle Corporation’s Annual Report on Form 10-K for the year ended December 31, 2019. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Charlotte, North Carolina
June 10, 2020
Exhibit 23.5
Consent of Independent Auditors
The Board of Directors
Windfield Holdings Pty Ltd:
We consent to the use of our report dated April 9, 2020, with respect to the consolidated statements of financial position of Windfield Holdings Pty Ltd and its subsidiaries as of December 31, 2019 and 2018, the related consolidated statements of profit or loss and other comprehensive income, changes in equity, and consolidated cash flow statements for each of the years then ended, and the related notes incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG
KPMG Perth
June 10, 2020
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Paul Vaden
U.S. Bank National Association
214 North Tryon Street, 27th Floor
Charlotte, NC 28202-1078
(704) 335-4654
(Name, address and telephone number of agent for service)
Albemarle Corporation
(Issuer with respect to the Securities)
| Virginia | 54-1692118 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) | |
| 4250 Congress Street, Suite 900 Charlotte, North Carolina |
28209 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of March 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Charlotte, State of North Carolina on the 10th of June, 2020.
| By: | /s/ Paul Vaden | |
| Paul Vaden | ||
| Vice President |
3
Exhibit 2
|
Office of the Comptroller of the Currency | |||
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Joseph Otting, Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
|
IN TESTIMONY WHEREOF, today, February 24, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia
/s/ Joseph Otting Comptroller of the Currency |
4
Exhibit 3
|
Office of the Comptroller of the Currency | |||
| Washington, DC 20219 |
CERTIFICATE OF FIDUCIARY POWERS
I, Joseph Otting, Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
|
IN TESTIMONY WHEREOF, today, December 10, 2019, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
/s/ Joseph Otting Comptroller of the Currency |
5
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: June 10, 2020
| By: | /s/ Paul Vaden | |
| Paul Vaden | ||
| Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 3/31/2020
($000’s)
| 3/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 46,699,020 | ||
| Securities |
122,149,987 | |||
| Federal Funds |
2,807 | |||
| Loans & Lease Financing Receivables |
316,711,655 | |||
| Fixed Assets |
9,075,777 | |||
| Intangible Assets |
12,477,802 | |||
| Other Assets |
26,012,043 | |||
|
|
|
|||
| Total Assets |
$ | 533,129,091 | ||
| Liabilities |
||||
| Deposits |
$ | 405,823,094 | ||
| Fed Funds |
1,428,527 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
1,392,214 | |||
| Other Borrowed Money |
55,078,404 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
3,850,000 | |||
| Other Liabilities |
14,338,298 | |||
|
|
|
|||
| Total Liabilities |
$ | 481,910,537 | ||
| Equity |
||||
| Common and Preferred Stock |
18,200 | |||
| Surplus |
14,266,915 | |||
| Undivided Profits |
36,132,907 | |||
| Minority Interest in Subsidiaries |
800,532 | |||
|
|
|
|||
| Total Equity Capital |
$ | 51,218,554 | ||
| Total Liabilities and Equity Capital |
$ | 533,129,091 | ||
7
Exhibit 99.1
Guarantor Financial Information
Albemarle Wodgina Pty Ltd (the “Issuer”), a wholly owned subsidiary of Albemarle Corporation, issued $300,000,000 aggregate principal amount of 3.45% Senior Notes due 2029 (the “Senior Notes”) in November 2019. The Senior Notes are fully and unconditionally guaranteed (the “Guarantee”) on a senior unsecured basis by Albemarle Corporation (the “Company”). No direct or indirect subsidiaries of the Company guarantee the Senior Notes (such subsidiaries are referred to as the “Non-Guarantors”).
The Issuer owns the Company’s proportionate share of assets, liabilities, revenue and expenses of the unincorporated joint venture for the exploration, development, mining, processing and production of lithium and other minerals (other than iron ore and tantalum) from the Wodgina spodumene mine and for the operation of the Kemerton assets in Western Australia (together, the “Wodgina Project”).
The Company conducts its U.S. Bromine Specialties and Catalysts operations directly, and conducts its other operations (other than operations conducted through the Issuer) through the Non-Guarantors.
The Senior Notes are the Issuer’s senior unsecured obligations and rank equally in right of payment to the senior indebtedness of the Issuer, effectively subordinated to all of the secured indebtedness of the Issuer, to the extent of the value of the assets securing that indebtedness, and structurally subordinated to all indebtedness and other liabilities of its subsidiaries. The Guarantee is the senior unsecured obligation of the Company and ranks equally in right of payment to the senior indebtedness of the Company, effectively subordinated to the secured debt of the Company to the extent of the value of the assets securing the indebtedness and structurally subordinated to all indebtedness and other liabilities of its subsidiaries.
For cash management purposes, the Company transfers cash among itself, the Issuer and the Non-Guarantors through intercompany financing arrangements, contributions or declaration of dividends between the respective parent and its subsidiaries. The transfer of cash under these activities facilitates the ability of the recipient to make specified third-party payments for principal and interest on the Issuer and/or the Company’s outstanding debt, common stock dividends and common stock repurchases. There are no significant restrictions on the ability of the Issuer or the Company to obtain funds from subsidiaries by dividend or loan.
The following tables present summarized financial information for the Company and the Issuer on a combined basis after elimination of (i) intercompany transactions and balances among the Issuer and the Company and (ii) equity in earnings from and investments in any subsidiary that is a Non-Guarantor. Each entity in the combined financial information follows the same accounting policies as described herein and in the Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
| Summarized Statement of Operations $ in thousands |
Three months ended March 31, 2020 |
Year ended December 31, 2019 |
||||||
| Net sales(a) |
$ | 404,116 | $ | 1,847,927 | ||||
| Gross profit |
104,173 | 488,248 | ||||||
| Loss before income taxes and equity in net income of unconsolidated investments(b) |
(33,648 | ) | (94,118 | ) | ||||
| Net loss attributable to the Company and the Issuer |
(31,035 | ) | (134,289 | ) | ||||
| (a) | Includes net sales to Non-Guarantors of $200.5 million and $1,011.7 million for the three months ended March 31, 2020 and year ended December 31, 2020, respectively. |
| (b) | Includes intergroup interest expense to Non-Guarantors of $38.7 million and $147.7 million for the three months ended March 31, 2020 and year ended December 31, 2020, respectively. |
1
| Summarized Balance Sheet $ in thousands |
March 31, 2020 | December 31, 2019 | ||||||
| Current assets(a) |
$ | 853,463 | $ | 865,228 | ||||
| Net property, plant and equipment |
2,422,889 | 2,357,193 | ||||||
| Other non-current assets |
289,453 | 303,851 | ||||||
| Current liabilities(b) |
$ | 945,706 | $ | 1,130,484 | ||||
| Long-term debt |
2,002,298 | 1,754,099 | ||||||
| Other non-current liabilities(c) |
7,234,363 | 7,186,392 | ||||||
| (a) | Includes receivables from Non-Guarantors of $148.4 million and $195.8 million at March 31, 2020 and December 31, 2019, respectively. |
| (b) | Includes current payables to Non-Guarantors of $338.8 million and $318.8 million at March 31, 2020 and December 31, 2019, respectively. |
| (c) | Includes non-current payables to Non-Guarantors of $6.4 billion and $6.3 billion at March 31, 2020 and December 31, 2019, respectively. |
The Senior Notes are structurally subordinated to the indebtedness and other liabilities of the Non-Guarantors. The Non-Guarantors are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the Senior Notes or the Indenture under which the Senior Notes were issued, or to make any funds available therefor, whether by dividends, loans, distributions or other payments. Any right that the Company has to receive any assets of any of the Non-Guarantors upon the liquidation or reorganization of any Non-Guarantor, and the consequent rights of holders of the Senior Notes to realize proceeds from the sale of any of a Non-Guarantor’s assets, would be effectively subordinated to the claims of such Non-Guarantor’s creditors, including trade creditors and holders of preferred equity interests, if any, of such Non-Guarantor. Accordingly, in the event of a bankruptcy, liquidation or reorganization of any of the Non-Guarantors, the Non-Guarantors will pay the holders of their debts, holders of preferred equity interests, if any, and their trade creditors before they will be able to distribute any of their assets to the Company.
The Senior Notes are obligations of the Issuer. The Issuer’s cash flow and ability to make payments on the Senior Notes could be dependent upon the earnings it derives from the production from the joint venture for the Wodgina Project (the “Joint Venture”). Absent income received from sales of its share of production from the Joint Venture, the Issuer’s ability to service the Senior Notes could be dependent upon the earnings of the Company’s subsidiaries and other joint ventures and the payment of those earnings to the Issuer in the form of equity, loans or advances and through repayment of loans or advances from the Issuer.
The Issuer’s obligations in respect of the Joint Venture are guaranteed by the Company. Further, under the Joint Venture pursuant to a deed of cross security between the Issuer, the joint venture partner and the manager of the project (the “Manager”), each of the Issuer, and the joint venture partner have granted security to each other and the Manager for the obligations each of the Issuer and the joint venture partner have to each other and to the Manager. The claims of the joint venture partner, the Manager and other secured creditors of the Issuer will have priority as to the assets of the Issuer over the claims of holders of the Senior Notes.
As of March 31, 2020, the Company and its subsidiaries had consolidated total debt of approximately $3.14 billion, of which $1.46 billion is indebtedness of the Company’s subsidiaries (or $1.10 billion excluding the Issuer).
2
Exhibit 99.2
LETTER OF TRANSMITTAL
Albemarle Corporation
Albemarle Wodgina Pty Ltd
OFFERS TO EXCHANGE
$200,000,000 OUTSTANDING FLOATING RATE NOTES DUE 2022
FOR
REGISTERED FLOATING RATE NOTES DUE 2022
AND
$300,000,000 OUTSTANDING 3.450% SENIOR NOTES DUE 2029
FOR
REGISTERED 3.450% SENIOR NOTES DUE 2029
PURSUANT TO THE PROSPECTUS
DATED , 2020
THE EXCHANGE OFFERS WILL EXPIRE AT 11:59 p.m., NEW YORK CITY TIME, ON , 2020, UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE EXCHANGE OFFERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO 11:59 p.m., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The information agent and exchange agent for the exchange offers is:
U. S. Bank National Association
By Mail or in Person
U.S. Bank National Association
111 Fillmore Avenue
St. Paul, MN 55107-1402
Attention: Specialized Finance
By Email or Facsimile Transmission (for Eligible Institutions Only)
Email: Cts.specfinance@usbank.com
Facsimile: (651) 466-7367
For Information and to Confirm by Telephone
(800) 934-6802
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE PROVIDED THEREFOR, WITH SIGNATURE GUARANTEE IF REQUIRED.
The undersigned hereby acknowledges receipt of the prospectus dated , 2020 (the “Prospectus”) of Albemarle Corporation, a Virginia corporation (“Albemarle”) and Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia and a wholly owned subsidiary of Albemarle (“Wodgina” and together with Albemarle, the “issuers”), and this Letter of Transmittal (or a facsimile thereof, the “Letter of Transmittal”), which together constitute Albemarle’s offer to exchange (the “2022 Exchange Notes Offer”) all of its issued and outstanding Floating Rate Notes due 2022 (the “2022 Restricted Notes”) for an equivalent principal amount of registered Floating Rate Notes due 2022 (the “2022 Exchange Notes”) and Wodgina’s offer to exchange (the “2029 Exchange Notes Offer” and together with the 2022 Exchange Notes Offer, the “exchange offers”) all of its issued and outstanding 3.450% Senior Notes due 2029 (the “2029 Restricted Notes”) for an equivalent principal amount of registered 3.450% Senior Notes due 2029 (the “2029 Exchange Notes”), respectively, pursuant to a registration statement of which the Prospectus is a part. Wodgina’s obligations under the 2029 Restricted Notes are fully and unconditionally on a senior unsecured basis (the “2029 Restricted Notes Guarantee”) by Albemarle, and the 2029 Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the “2029 Exchange Notes Guarantee” and together with the 2029 Restricted Notes Guarantee, the “2029 Notes Guarantee”) by Albemarle. The 2022 Restricted Notes and the 2029 Restricted Notes are collectively referred to as the “Restricted Notes.” The 2022 Exchange Notes and the 2029 Exchange Notes are collectively referred to as the “Exchange Notes.” All references to the Exchange Notes and Restricted Notes include references to the related guarantees, as appropriate. The Restricted Notes were issued in private transactions on November 25, 2019, which were not subject to the registration requirements of the Securities Act. Certain terms used but not defined herein have the respective meanings given to them in the Prospectus.
The issuers reserve the right, at any time or from time to time, to extend the exchange offers at their discretion, in which event the term “Expiration Date” shall mean the latest date and time to which the exchange offers are extended.
This Letter of Transmittal is to be used by a holder of Restricted Notes if (i) Restricted Notes are to be physically forwarded herewith to the exchange agent or (ii) delivery of Restricted Notes is to be made by book-entry transfer to the account maintained by the exchange agent at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Prospectus under the caption “The Exchange Offers — Procedures for Tendering Restricted Notes.” Tenders by book-entry transfer may also be made by delivering an agent’s message (as defined in the Prospectus) pursuant to DTC’s Automated Tender Offer Program in lieu of this Letter of Transmittal. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term “holder” with respect to the exchange offers means any person in whose name Restricted Notes are registered on the books of each issuer or any other person who has obtained a properly completed bond power from the registered holder. The undersigned has completed, executed and delivered this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the exchange offers. Holders who wish to tender their Restricted Notes must complete this Letter of Transmittal in its entirety.
Please read the entire Letter of Transmittal and the Prospectus carefully before checking any box below.
The instructions included with this Letter of Transmittal must be followed. Questions and requests for assistance for additional copies of the Prospectus and this Letter of Transmittal may be directed to the exchange agent.
List below the Restricted Notes to which this Letter of Transmittal relates. If the space below is inadequate, list the registered numbers and principal amounts on a separate signed schedule and affix the list to this Letter of Transmittal.
| DESCRIPTION OF RESTRICTED NOTES TENDERED | ||||||||
| Tendered | ||||||||
| Name(s) and Address(es) of Registered Holder(s) Exactly as Name(s) Appear(s) on the Restricted Notes. (Please Fill in, if Blank). |
Series of
Restricted |
Certificate |
Aggregate Principal |
Principal | ||||
| ☐ Floating Rate Notes due 2022 | ||||||||
| ☐ 3.450% Senior Notes due 2029 | ||||||||
| Total Principal Amount | ||||||||
| * | Need not be completed if Restricted Notes are being transferred by book-entry transfer. Such holders should check the boxes below as appropriate and provide the requested information. |
| ** | Unless otherwise indicated, any tendering holder of Restricted Notes will be deemed to have tendered the entire aggregate principal amount represented by such Restricted Notes. Notes may be tendered and accepted for payment only in principal amounts equal to minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. No alternative, conditional or contingent tenders will be accepted. |
| ☐ | CHECK HERE IF TENDERED RESTRICTED NOTES ARE ENCLOSED HEREWITH. |
| ☐ | CHECK HERE IF TENDERED RESTRICTED NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY): |
| Name of Tendering Institution:
|
| Account Number:
|
| Transaction Code Number: |
| ☐ | CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO: |
| Name:
|
| Address: |
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the exchange offers, the undersigned hereby tenders to Albemarle for exchange the principal amount of 2022 Restricted Notes and Wodgina for exchange the principal amount of 2029 Restricted Notes, as applicable, indicated above. Subject to and effective upon the acceptance for exchange of the principal amount of Restricted Notes tendered in accordance with this Letter of Transmittal, the undersigned hereby exchanges, assigns and transfers to Albemarle or Wodgina, as applicable, all right, title and interest in and to the Restricted Notes tendered for exchange hereby. The undersigned hereby irrevocably constitutes and appoints the exchange agent, as its agent, attorney-in-fact and proxy (with full knowledge that the exchange agent also is acting as the agent of the issuers in connection with the exchange offers) with respect to the tendered Restricted Notes with full power of substitution to:
| • | deliver such Restricted Notes, or transfer ownership of such Restricted Notes on the account books maintained by DTC, to Albemarle or Wodgina, as applicable, and deliver all accompanying evidence of transfer and authenticity, and |
| • | present such Restricted Notes for transfer on the books of Albemarle or Wodgina, as applicable, and receive all benefits and otherwise exercise all rights of beneficial ownership of such Restricted Notes, |
all in accordance with the terms of the exchange offers. The power of attorney granted in this paragraph shall be deemed to be irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, exchange, assign and transfer the Restricted Notes tendered hereby and to acquire the Exchange Notes issuable upon the exchange of such tendered Restricted Notes, and that Albemarle or Wodgina, as applicable, will acquire good and unencumbered title to the Restricted Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim, when the same are accepted for exchange by Albemarle or Wodgina, as applicable.
The undersigned acknowledge(s) that these exchange offers are being made in reliance upon interpretations contained in no-action letters issued to third parties by the staff of the Securities and Exchange Commission (the “SEC”), including Exxon Capital Holdings Corporation, SEC No-Action Letter (available April 13, 1988), Morgan Stanley & Co. Incorporated, SEC No-Action Letter (available June 5, 1991), Shearman & Sterling, SEC No-Action Letter (available July 2, 1993) and Brown & Wood LLP, SEC No-Action Letter (available February 7, 1997), that the Exchange Notes issued in exchange for the Restricted Notes pursuant to the exchange offers may be offered for resale, resold and otherwise transferred by holders thereof (other than a broker-dealer who purchased Restricted Notes exchanged for such Exchange Notes directly from Albemarle or Wodgina, as applicable, to resell pursuant to Rule 144A or any other available exemption under the Securities Act or a person that is an “affiliate” of Albemarle or Wodgina, as applicable, within the meaning of Rule 405 under the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such Exchange Notes are acquired in the ordinary course of such holders’ business and such holders are not participating in, and have no arrangement with any person to participate in, the distribution of such Exchange Notes. The undersigned specifically represent(s) to Albemarle or Wodgina, as applicable, that:
| • | it is not an affiliate of Albemarle or Wodgina within the meaning of Rule 405 of the Securities Act or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable; |
| • | it is not participating, and it has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
| • | if it is a broker-dealer, it has not entered into any arrangement or understanding with Albemarle or Wodgina or any of their affiliates to distribute the Exchange Notes; |
| • | it is acquiring the Exchange Notes in the ordinary course of its business; and |
| • | it is not acting on behalf of any person or entity that could not truthfully make these representations. |
If the exchange offeree is a broker-dealer holding Restricted Notes acquired for its own account as a result of market-making activities or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Notes received in respect of such Restricted Notes pursuant to the exchange offers.
If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Restricted Notes, it acknowledges and represents that (i) such outstanding Restricted Notes were acquired by it as a result of market-making activities or other trading activities and (ii) it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The undersigned acknowledges that if the undersigned is participating in the exchange offers for the purpose of distributing the Exchange Notes:
| • | the undersigned cannot rely on the position of the staff of the SEC enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the SEC’s letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters, and, in the absence of an exemption therefrom, must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction of the Exchange Notes, in which case the registration statement must contain the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the SEC; and |
| • | failure to comply with such requirements in such instance could result in the undersigned incurring liability for which the undersigned is not indemnified by Albemarle or Wodgina, as applicable. |
The undersigned will, upon request, execute and deliver any additional documents deemed by the exchange agent or the issuers to be necessary or desirable to complete the exchange, assignment and transfer of the Restricted Notes tendered hereby, including the transfer of such Restricted Notes on the account books maintained by DTC.
For purposes of the exchange offers, Albemarle or Wodgina, as applicable, shall be deemed to have accepted for exchange validly tendered Restricted Notes when, as and if Albemarle or Wodgina, as applicable, gives oral or written notice thereof to the exchange agent. Any tendered Restricted Notes that are not accepted for exchange pursuant to the exchange offers for any reason will be returned, without expense (subject to Instruction 6), to the undersigned at the address shown below or at a different address as may be indicated herein under “Special Delivery Instructions” as promptly as practicable after the expiration date.
All authority conferred or agreed to be conferred by this Letter of Transmittal shall survive the death, incapacity or dissolution of the undersigned, and every obligation of the undersigned under this Letter of Transmittal shall be binding upon the undersigned’s heirs, personal representatives, successors and assigns.
The undersigned acknowledges that the acceptance of properly tendered Restricted Notes by Albemarle or Wodgina, as applicable, pursuant to the procedures described under the caption “The Exchange Offers — Procedures for Tendering Restricted Notes” in the Prospectus and in the instructions hereto will constitute a binding agreement between the undersigned and Albemarle or Wodgina, as applicable, upon the terms and subject to the conditions of the exchange offers.
Unless otherwise indicated under “Special Issuance Instructions,” please issue the Exchange Notes issued in exchange for the Restricted Notes accepted for exchange, and return any Restricted Notes not tendered or not exchanged, in the name(s) of the undersigned. Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail or deliver the Exchange Notes issued in exchange for the Restricted Notes accepted for exchange and any Restricted Notes not tendered or not exchanged (and accompanying documents, as appropriate) to the undersigned at the address shown below the undersigned’s signature(s). In the event that both “Special Issuance
Instructions” and “Special Delivery Instructions” are completed, please issue the Exchange Notes issued in exchange for the Restricted Notes accepted for exchange in the name(s) of, and return any Restricted Notes not tendered or not exchanged to, the person(s) so indicated. The undersigned recognizes that the issuers have no obligations pursuant to the “Special Issuance Instructions” and “Special Delivery Instructions” to transfer any Restricted Notes from the name of the registered holder(s) thereof if the issuers do not accept for exchange any of the Restricted Notes so tendered for exchange.
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY (i) if Restricted Notes in a principal amount not tendered, or Exchange Notes issued in exchange for Restricted Notes accepted for exchange, are to be issued in the name of someone other than the undersigned, or (ii) if Restricted Notes tendered by book-entry transfer that are not exchanged are to be returned by credit to an account maintained at DTC other than the account indicated above.
Issue Exchange Notes and/or Restricted Notes to:
Name:
(Please Print or Type)
Address:
(Include Zip Code)
(Tax Identification or Social Security Number)
(See IRS Form W-9 Included Herein)
| ☐ | Credit unexchanged Restricted Notes delivered by book-entry transfer to DTC account number set forth below: |
DTC account number:
(Please Complete IRS Form W-9 Herein, See Instruction 7)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4 and 5)
To be completed ONLY if Restricted Notes in a principal amount not tendered, or Exchange Notes issued in exchange for Restricted Notes accepted for exchange, are to be mailed or delivered to someone other than the undersigned, or to the undersigned at an address other than that shown below the undersigned’s signature.
Mail or deliver Exchange Notes and/or Restricted Notes to:
Name:
(Please Print or Type)
Address:
(Include Zip Code)
(Tax Identification or Social Security Number)
(See IRS Form W-9 Included Herein)
IMPORTANT
PLEASE SIGN HERE WHETHER OR NOT RESTRICTED NOTES
ARE BEING PHYSICALLY TENDERED HEREBY
(Complete Accompanying Substitute Form W-9 on Reverse Side)
X:
X:
(Signature(s) of Registered Holder(s) of Restricted Notes)
Dated: ____________________________________, 2020
(The above lines must be signed by the registered holder(s) of Restricted Notes as name(s) appear(s) on the Restricted Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by a properly completed bond power from the registered holder(s), a copy of which must be transmitted with this Letter of Transmittal. If Restricted Notes to which this Letter of Transmittal relate are held of record by two or more joint holders, then all such holders must sign this Letter of Transmittal. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, then such person must set forth his or her full title below and, unless waived by Albemarle or Wodgina, as applicable, submit evidence satisfactory to Albemarle or Wodgina, as applicable, of such person’s authority so to act. See Instruction 4 regarding the completion of this Letter of Transmittal, printed below.)
Name:
(Please Type or Print)
Capacity:
Address:
(Include Zip Code)
Address Code and Telephone Number:
SIGNATURE GUARANTEE
(If Required by Instruction 4)
Certain signatures must be guaranteed by an eligible institution.
Signature(s) guaranteed by an eligible institution:
(Authorized Signature)
(Title)
(Name of Firm)
(Address, Include Zip Code)
(Area Code and Telephone Number)
Dated: ____________________________________, 2020
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal and Restricted Notes or Book-Entry Confirmations. All physically delivered Restricted Notes or any confirmation of a book-entry transfer to the exchange agent’s account at DTC of Restricted Notes tendered by book-entry transfer (a “book-entry confirmation”), as well as a properly completed and duly executed copy of this Letter of Transmittal (or facsimile hereof) or agent’s message (as defined in the Prospectus) in lieu thereof, and any other documents required by this Letter of Transmittal, must be received by the exchange agent at its address set forth herein prior to 11:59 p.m., New York City time, on the expiration date. The method of delivery of the tendered Restricted Notes, this Letter of Transmittal and all other required documents to the exchange agent is at the election and risk of the holder and, except as otherwise provided below, the delivery will be deemed made only when actually received or confirmed by the exchange agent. Instead of delivery by mail, it is recommended that the holder use an overnight or hand delivery service. In all cases, sufficient time should be allowed to assure delivery to the exchange agent before the expiration date. No Letter of Transmittal or Restricted Notes should be sent to the issuers.
2. Tender by Holder. Only a holder of Restricted Notes may tender such Restricted Notes in the exchange offers. Any beneficial owner of Restricted Notes who is not the registered holder and who wishes to tender should arrange with the registered holder to execute and deliver this Letter of Transmittal on his or her behalf or must, prior to completing and executing this Letter of Transmittal and delivering his or her Restricted Notes, either make appropriate arrangements to register ownership of the Restricted Notes in such beneficial owner’s name or obtain a properly completed bond power from the registered holder.
3. Partial Tenders. Tenders of Restricted Notes will be accepted only in a minimum denomination of $2,000 and integral multiples of $1,000 in excess thereof. Holders who tender less than all of their Restricted Notes must continue to hold Restricted Notes in the minimum denomination of $2,000. If less than the entire principal amount of any Restricted Notes is tendered, the tendering holder should fill in the principal amount tendered in the third column of the box titled “Description of Restricted Notes Tendered” above. The entire principal amount of Restricted Notes delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated. If the entire principal amount of all Restricted Notes is not tendered, then Restricted Notes for the principal amount of Restricted Notes not tendered and Exchange Notes issued in exchange for any Restricted Notes accepted will be sent to the holder at his or her registered address, unless a different address is provided in the appropriate box on this Letter of Transmittal, promptly after the Restricted Notes are accepted for exchange.
4. Signatures on this Letter of Transmittal; Bond Powers and Endorsements; Guarantee of Signatures. If this Letter of Transmittal (or facsimile hereof) is signed by the record holder(s) of the Restricted Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the Restricted Notes without alteration, enlargement or any change whatsoever. If this Letter of Transmittal (or facsimile hereof) is signed by a participant in DTC, the signature must correspond with the name as it appears on the security position listing as the holder of the Restricted Notes.
If this Letter of Transmittal (or facsimile hereof) is signed by the registered holder or holders of Restricted Notes listed and tendered hereby and the Exchange Notes issued in exchange therefor are to be issued (or any untendered principal amount of Restricted Notes is to be reissued) to the registered holder, the said holder need not and should not endorse any tendered Restricted Notes, nor provide a separate bond power. In any other case, such holder must either properly endorse the Restricted Notes tendered or transmit a properly completed separate bond power with this Letter of Transmittal, with the signatures on the endorsement or bond power guaranteed by an eligible institution.
If this Letter of Transmittal (or facsimile hereof) is signed by a person other than the registered holder or holders of any Restricted Notes listed, such Restricted Notes must be endorsed or accompanied by appropriate bond powers, in each case signed as the name of the registered holder (or holders) appears on the Restricted Notes.
If this Letter of Transmittal (or facsimile hereof) or any Restricted Notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by Albemarle or
Wodgina, as applicable, evidence satisfactory to Albemarle or Wodgina, as applicable, of their authority to act must be submitted with this Letter of Transmittal.
Endorsements on Restricted Notes or signatures on bond powers required by this Instruction 4 must be guaranteed by an eligible institution.
No signature guarantee is required if:
| • | this Letter of Transmittal (or facsimile hereof) is signed by the registered holder(s) of the Restricted Notes tendered herein (or by a participant in DTC whose name appears on a security position listing as the owner of the tendered Restricted Notes) and the Exchange Notes are to be issued directly to such registered holder(s) (or, if signed by a participant in DTC, deposited to such participant’s account at DTC) and neither the box entitled “Special Delivery Instructions” nor the box entitled “Special Issuance Instructions” has been completed; or |
| • | such Restricted Notes are tendered for the account of an eligible institution. |
In all other cases, all signatures on this Letter of Transmittal (or facsimile hereof) must be guaranteed by an eligible institution.
5. Special Issuance and Delivery Instructions. Tendering holders should indicate, in the applicable box or boxes, the name and address (or account at the book-entry transfer facility) to which Exchange Notes or substitute Restricted Notes for principal amounts not tendered or not accepted for exchange are to be issued or sent, if different from the name and address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification or social security number of the person named must also be indicated.
6. Transfer Taxes. Albemarle or Wodgina, as applicable, will pay all transfer taxes, if any, applicable to the exchange of Restricted Notes pursuant to the exchange offers. If, however, Exchange Notes or Restricted Notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Restricted Notes tendered hereby, or if tendered Restricted Notes are registered in the name of any person other than the person signing this Letter of Transmittal, or if a transfer tax is imposed for any reason other than the exchange of Restricted Notes pursuant to the exchange offers, then the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE RESTRICTED NOTES LISTED IN THIS LETTER OF TRANSMITTAL.
7. Taxpayer Identification Number; Backup Withholding; IRS Form W-9. U.S. federal income tax laws generally require that a tendering holder provides the exchange agent with such holder’s correct Taxpayer Identification Number (“TIN”) on IRS Form W-9, Request for Taxpayer Identification Number and Certification, below (the “IRS Form W-9”), which in the case of a holder who is an individual, is his or her social security number. If the tendering holder is a non-resident alien or a foreign entity, other requirements (as described below) will apply. If the exchange agent is not provided with the correct TIN or an adequate basis for an exemption from backup withholding, such tendering holder may be subject to a $50 penalty imposed by the Internal Revenue Service (the “IRS”). In addition, failure to provide the exchange agent with the correct TIN or an adequate basis for an exemption from backup withholding may result in backup withholding on payments made to the tendering holder pursuant to the exchange offer at a current rate of 24%. If withholding results in an overpayment of taxes, the holder may obtain a refund from the IRS.
Exempt holders of the Restricted Notes (including, among others, all corporations) are not subject to these backup withholding and reporting requirements. See the enclosed Instructions for the Requester of Form W-9 (the “W-9 Guidelines”) for additional instructions.
To prevent backup withholding, each tendering holder that is a U.S. person (including a resident alien) must provide its correct TIN by completing the IRS Form W-9 set forth below, certifying, under penalties of perjury, that (a) such holder is a U.S. person (including a resident alien), (b) the TIN provided is correct (or that such Holder is awaiting a TIN), (c) such holder is not subject to backup withholding because (i) such holder is exempt from backup withholding, or (ii) such holder has not been notified by the IRS that such holder is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified such holder that such holder is no longer subject to backup withholding and (d) the Foreign Account Tax Compliance Act (FATCA) code(s) entered on the IRS Form W-9 (if any) indicating the holder is exempt from FATCA reporting is correct. If a tendering holder has been notified by the IRS that such holder is subject to backup withholding, such holder must cross out item (2) in Part II on the Form W-9, unless such holder has since been notified by the IRS that such holder is no longer subject to backup withholding. If the Restricted Notes are in more than one name or are not in the name of the actual owner, such holder should consult the W-9 Guidelines for information on which TIN to report. If such holder does not have a TIN, such Holder should consult the W-9 Guidelines for instructions on applying for a TIN, write “Applied For” in the space reserved for the TIN, as shown on IRS Form W-9. Note: Writing “Applied For” on the IRS Form W-9 means that such holder has already applied for a TIN or that such holder intends to apply for one in the near future. If such holder does not provide its TIN to the exchange agent within 60 days, backup withholding will begin and continue until such holder furnishes its TIN to the exchange agent.
A tendering holder that is a non-resident alien or a foreign entity must submit the appropriate completed IRS Form W-8 (generally IRS Form W-8BEN or W-8BEN-E, as applicable, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting) to avoid backup withholding. The appropriate form may be obtained via the IRS website at www.irs.gov or by contacting the exchange agent at the address on the face of this Letter of Transmittal.
FAILURE TO COMPLETE IRS FORM W-9, IRS FORM W-8BEN, IRS Form W-8BEN-E OR ANOTHER APPROPRIATE FORM MAY RESULT IN BACKUP WITHHOLDING AT THE RATE DESCRIBED ABOVE ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
8. Validity of Tenders. All questions as to the validity, form, eligibility (including time of receipt), acceptance and withdrawal of tendered Restricted Notes will be determined by the issuers in their sole discretion, which determination will be final and binding. The issuers reserve the absolute right to reject any and all Restricted Notes not properly tendered or any Restricted Notes the acceptance of which would, in the opinion of the issuers or their counsel, be unlawful. The issuers also reserve the absolute right to waive any conditions of the exchange offers or defects or irregularities in tenders as to particular Restricted Notes. The interpretation of the terms and conditions by the issuers of the exchange offers (which includes this Letter of Transmittal and the instructions hereto) shall be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Restricted Notes must be cured within such time as the issuers shall determine. Neither the issuers, the exchange agent nor any other person shall be under any duty to give notification of defects or irregularities with regard to tenders of Restricted Notes nor shall any of them incur any liability for failure to give such information.
9. Waiver of Conditions. The issuers reserve the absolute right to waive, in whole or in part, any of the conditions to the exchange offers set forth in the Prospectus.
10. No Conditional Tender. No alternative, conditional, irregular or contingent tender of Restricted Notes or transmittal of this Letter of Transmittal will be accepted.
11. Mutilated, Lost, Stolen or Destroyed Restricted Notes. Any holder whose Restricted Notes have been mutilated, lost, stolen or destroyed should contact the exchange agent at the address indicated above for further instructions.
12. Requests for Assistance or Additional Copies. Requests for assistance or for additional copies of the Prospectus or this Letter of Transmittal may be directed to the exchange agent at the address or telephone number set forth on the cover page of this Letter of Transmittal. Holders may also contact their broker, dealer, commercial bank, trust company or other nominee for assistance concerning the exchange offers.
13. Withdrawal. Tenders may be withdrawn only pursuant to the withdrawal rights set forth in the Prospectus under the caption “The Exchange Offers — Withdrawal of Tenders.”
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE HEREOF OR AN AGENT’S MESSAGE IN LIEU THEREOF (TOGETHER WITH THE RESTRICTED NOTES DELIVERED BY BOOK-ENTRY TRANSFER OR IN ORIGINAL HARD COPY FORM) MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
Cat. No. 10231X Form W-9 (Rev. 10-2018) Form W-9 (Rev. October 2018) Department Internal Revenue of the Service Treasury Request for Taxpayer Identification Number and Certification Go to www.irs.gov/FormW9 for instructions and the latest information. Give Form to the requester. Do not send to the IRS. Print or type. See Specific Instructions on page 3. 1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 2 Business name/disregarded entity name, if different from above 3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the following seven boxes. Individual/sole proprietor or C Corporation S Corporation Partnership Trust/estate single-member LLC Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner. Other (see instructions) 4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3): Exempt payee code (if any) Exemption from FATCA reporting code (if any) (Applies to accounts maintained outside the U.S.) 5 Address (number, street, and apt. or suite no.) See instructions. Requester’s name and address (optional) 6 City, state, and ZIP code 7 List account number(s) here (optional) Part I Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later. Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. or Employer identification number Social security number Part II Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. I am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later. Sign Signature of Here U.S. person Date General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9. Purpose of Form An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1099-INT (interest earned or paid) • Form 1099-DIV (dividends, including those from stocks or mutual funds) Form 1099-MISC (various types of income, prizes, awards, or gross proceeds) • Form 1099-B (stock or mutual fund sales and certain other transactions by brokers) Form 1099-S (proceeds from real estate transactions) • Form 1099-K (merchant card and third party network transactions) • Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition) • Form 1099-C (canceled debt) • Form 1099-A (acquisition or abandonment of secured property) Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.
Form W-9 (Rev. 10-2018) Page 2 By signing the filled-out form, you: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certify that you are not subject to backup withholding, or 3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners’ share of effectively connected income, and 4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information. Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9. Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are: An individual who is a U.S. citizen or U.S. resident alien; A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States; An estate (other than a foreign estate); or A domestic trust (as defined in Regulations section 301.7701-7). Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income. In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States. In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity; In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust. Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities). Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes. contained If you are in a the U. S saving . resident clause alien of who a tax is treaty relying to on claim an exception an exemption from to Form U.S W . tax -9 that on certain specifies types the of following income, five you items must . attach a statement which 1. The you treaty claimed country exemption . Generally, from this tax must as a nonresident be the same alien treaty . under 2. The treaty article addressing the income. saving 3. The clause article and number its exceptions (or location) . in the tax treaty that contains the from 4. The tax. type and amount of income that qualifies for the exemption the 5 .treaty Sufficient article facts . to justify the exemption from tax under the terms of Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption. If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233. Backup Withholding What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding. You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return. Payments you receive will be subject to backup withholding if: 1. You do not furnish your TIN to the requester, 2. You do not certify your TIN when required (see the instructions for Part II for details), 3. The IRS tells the requester that you furnished an incorrect TIN, 4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or 5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only). Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information. Also see Special rules for partnerships, earlier. What is FATCA Reporting? The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information. Updating Your Information You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies. Penalties Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Form W-9 (Rev. 10-2018) Page 3 Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties. Specific Instructions Line 1 You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return. If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9. a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name. Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application. b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or “doing business as” (DBA) name on line 2. c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entity’s name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2. d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2. e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulations section 301.7701-2(c)(2)(iii). Enter the owner’s name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2, “Business name/disregarded entity name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN. Line 2 If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2. Line 3 Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3. IF the entity/person on line 1 is THEN check the box for . . . a(n) . . . Corporation Corporation Individual Individual/sole proprietor or single Sole proprietorship, or member LLC Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes. LLC treated as a partnership for Limited liability company and enter U.S. federal tax purposes, the appropriate tax classification. LLC that has filed Form 8832 or (P= Partnership; C= C corporation; 2553 to be taxed as a corporation, or S= S corporation) or LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes. Partnership Partnership Trust/estate Trust/estate Line 4, Exemptions If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you. Exempt payee code. Generally, individuals (including sole proprietors) are not exempt from backup withholding. Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends. Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions. Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC. The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4. 1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2) 2—The United States or any of its agencies or instrumentalities 3—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities 4—A foreign government or any of its political subdivisions, agencies, or instrumentalities 5—A corporation 6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession 7—A futures commission merchant registered with the Commodity Futures Trading Commission 8—A real estate investment trust 9—An entity registered at all times during the tax year under the Investment Company Act of 1940 10—A common trust fund operated by a bank under section 584(a) 11—A financial institution 12—A middleman known in the investment community as a nominee or custodian 13—A trust exempt from tax under section 664 or described in section 4947
Form W-9 (Rev. 10-2018) Page 4 The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13. IF the payment is for . . . THEN the payment is exempt for . . . Interest and dividend payments All exempt payees except for 7 Broker transactions Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. Barter exchange transactions and Exempt payees 1 through 4 patronage dividends Payments over $600 required to be Generally, exempt payees reported and direct sales over 1 through 52 $5,0001 Payments made in settlement of Exempt payees 1 through 4 payment card or third party network transactions 1 See Form 1099-MISC, Miscellaneous Income, and its instructions. 2 However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) written or printed on the line for a FATCA exemption code. A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37) B—The United States or any of its agencies or instrumentalities C—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i) E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i) F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state G—A real estate investment trust H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940 I—A common trust fund as defined in section 584(a) J—A bank as defined in section 581 K—A broker L—A trust exempt from tax under section 664 or described in section 4947(a)(1) M—A tax exempt trust under a section 403(b) plan or section 457(g) plan Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed. Line 5 Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records. Line 6 Enter your city, state, and ZIP code. Part I. Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below. If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN. Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations. How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days. If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester. Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon. Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8. Part II. Certification To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise. For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier. Signature requirements. Complete the certification as indicated in items 1 through 5 below.
Form W-9 (Rev. 10-2018) Page 5 1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification. 2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form. 3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification. 4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations). 5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification. What Name and Number To Give the Requester For this type of account: Give name and SSN of: 1. Individual The individual 2. Two or more individuals (joint The actual owner of the account or, if account) other than an account combined funds, the first individual on maintained by an FFI the account1 3. Two or more U.S. persons Each holder of the account (joint account maintained by an FFI) The minor2 4. Custodial account of a minor (Uniform Gift to Minors Act) 5. a. The usual revocable savings trust The grantor-trustee1 (grantor is also trustee) b. So-called trust account that is not The actual owner1 a legal or valid trust under state law 6. Sole proprietorship or disregarded The owner3 entity owned by an individual 7. Grantor trust filing under Optional The grantor* Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i) (A)) For this type of account: Give name and EIN of: 8. Disregarded entity not owned by an The owner individual 9. A valid trust, estate, or pension trust Legal entity4 10. Corporation or LLC electing The corporation corporate status on Form 8832 or Form 2553 11. Association, club, religious, The organization charitable, educational, or other tax-exempt organization 12. Partnership or multi-member LLC The partnership 13. A broker or registered nominee The broker or nominee For this type of account: Give name and EIN of: 14. Account with the Department of The public entity Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments 15. Grantor trust filing under the Form The trust 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B)) 1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. 2 Circle the minor’s name and furnish the minor’s SSN. 3 You must show your individual name and you may also enter your business or DBA name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN. 4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier. *Note: The grantor also must provide a Form W-9 to trustee of trust. Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed. Secure Your Tax Records From Identity Theft Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund. To reduce your risk: Protect your SSN, Ensure your employer is protecting your SSN, and Be careful when choosing a tax preparer. If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter. If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039. For more information, see Pub. 5027, Identity Theft Information for Taxpayers. Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059. Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
Form W-9 (Rev. 10-2018) Page 6 The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts. If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027. Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk. Privacy Act Notice Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Instructions for the Requester of Form W-9 (Rev. October 2018) Request for Taxpayer Identification Number and Certification Section references are to the Internal Revenue Code unless otherwise noted. Future Developments For the latest developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/w9. What’s New Backup withholding rate. The backup withholding rate is 24% for reportable payments. Reminders FATCA and backup withhollding exemptions. FATCA requires a participating foreign financial institution to report all U.S. account holders that are specified U.S. persons. Form W-9 and the Instructions for the Requester of Form W-9 have an Exemptions box on the front of the form that includes entry for the Exempt payee code (if any) and Exemption from FATCA Reporting Code (if any). The references for the appropriate codes are in the Exemptions section of Form W-9, and in the Payees Exempt from Backup Withholding and Payees and Account Holders Exempt From FATCA Reporting sections of these instructions. The Certification section in Part II of Form W-9 includes certification relating to FATCA reporting. Payment card and third party network transactions. References to payments made in settlement of payment card and third party network transactions are included in the Purpose of Form section of Form W-9. For more information, see the Instructions for Form 1099-K, Payment Card and Third Party Network Transactions on IRS.gov. Also, visit www.irs.gov/1099k. Backup withholding liability. If you do not collect backup withholding from affected payees as required, you may become liable for any uncollected amount. TIN matching e-services. The IRS website offers TIN Matching e-services for certain payers to validate name and TIN combinations. See Taxpayer Identification Number (TIN) Matching, latter. How Do I Know When To Use Form W-9? Use Form W-9 to request the taxpayer identification number (TIN) of a U.S. person (including a resident alien) and to request certain certifications and claims for exemption. (See Purpose of Form on Form W-9.) Withholding agents may require signed Forms W-9 from U.S. exempt recipients to overcome a presumption of foreign status. For federal purposes, a U.S. person includes but is not limited to: An individual who is a U.S. citizen or U.S. resident alien. A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States, Any estate (other than a foreign estate), or A domestic trust (as defined in Regulations section 301.7701-7). A partnership may require a signed Form W-9 from its U.S. partners to overcome a presumption of foreign status and to avoid withholding on the partner’s allocable share of the partnership’s effectively connected income. For more information, see Regulations section 1.1446-1. A participating foreign financial institution (PFFI) should request Form W-9 from an account holder that is a U.S. person. If an account is jointly held, the PFFI should request a Form W-9 from each holder that is a U.S. person. Advise foreign persons to use the appropriate Form W-8 or Form 8233, Exemption From Withholding on Compensation for Independent (and Certain Dependent) Personal Services of a Nonresident Alien Individual. See Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities, for more information and a list of the W-8 forms. Electronic Submission of Forms W-9 Requesters may establish a system for payees and payees’ agents to submit Forms W-9 electronically, including by fax. A requester is anyone required to file an information return. A payee is anyone required to provide a taxpayer identification number (TIN) to the requester. Payee’s agent. A payee’s agent can be an investment advisor (corporation, partnership, or individual) or an introducing broker. An investment advisor must be registered with the Securities and Exchange Commission (SEC) under the Investment Advisers Act of 1940. The introducing broker is a broker-dealer that is regulated by the SEC and the National Association of Securities Dealers, Inc., and that is not a payer. Except for a broker who acts as a payee’s agent for “readily tradable instruments,”the advisor or broker must show in writing to the payer that the payee authorized the advisor or broker to transmit the Form W-9 to the payer. Electronic system. Generally, the electronic system must: Ensure the information received is the information sent, and document all occasions of user access that result in the submission; Make reasonably certain that the person accessing the system and submitting the form is the person identified on Form W-9, the investment advisor, or the introducing broker; Provide the same information as the paper Form W-9; Be able to supply a hard copy of the electronic Form W-9 if the Internal Revenue Service requests it; and Require as the final entry in the submission an electronic signature by the payee whose name is on Form W-9 that authenticates and verifies the submission. The electronic signature must be under penalties of perjury and the perjury statement must contain the language of the paper Form W-9. For Forms W-9 that are not required to be signed, the electronic system need not provide for an electronic signature or a perjury statement. For more details, see the following. Announcement 98-27, which is on page 30 of Internal Revenue Bulletin 1998-15 at www.irs.gov/pub/irs-irbs/irb98-15.pdf. Announcement 2001-91, which is on page 221 of Internal Revenue Bulletin 2001-36 at www.irs.gov/pub/irs-irbs/irb01-36.pdf. Sep 25, 2018 Cat. No. 20479P
Individual Taxpayer Identification Number (ITIN) Form W-9 (or an acceptable substitute) is used by persons required to file information returns with the IRS to get the payee’s (or other person’s) correct name and TIN. For individuals, the TIN is generally a social security number (SSN). However, in some cases, individuals who become U.S. resident aliens for federal tax purposes are not eligible to obtain an SSN. This includes certain resident aliens who must receive information returns but who cannot obtain an SSN. These individuals must apply for an ITIN on Form W-7, Application for IRS Individual Taxpayer Identification Number, unless they have an application pending for an SSN. Individuals who have an ITIN must provide it on Form W-9. Note. ITINs that haven’t been included on a U.S. federal tax return at least once in the last 3 consecutive tax years will expire. Expired ITINs must be renewed in order to avoid delays in processing the ITINs holder’s tax return, If the IRS deactivates the ITIN because it has expired, the ITIN may still be used on Form W-9. However, the ITIN holder will have to apply to renew the deactivated ITIN if there is a need to file a tax return. For more information, see the Instructions for Form W-7. Substitute Form W-9 You may develop and use your own Form W-9 (a substitute Form W-9) if its content is substantially similar to the official IRS Form W-9 and it satisfies certain certification requirements. You may incorporate a substitute Form W-9 into other business forms you customarily use, such as account signature cards. However, the certifications on the substitute Form W-9 must clearly state (as shown on the official Form W-9) that under penalties of perjury: 1. The payee’s TIN is correct, 2. The payee is not subject to backup withholding due to failure to report interest and dividend income, 3. The payee is a U.S. person, and 4. The FATCA code entered on this form (if any) indicating that the payee is exempt from FATCA reporting is correct. You may provide certification instructions on a substitute Form W-9 in a manner similar to the official form. If you are not collecting a FATCA exemption code by omitting that field from the substitute Form W-9 (see Payees and Account Holders Exempt From FATCA Reporting, later), you may notify the payee that item 4 does not apply. You may not: 1. Use a substitute Form W-9 that requires the payee, by signing, to agree to provisions unrelated to the required certifications, or 2. Imply that a payee may be subject to backup withholding unless the payee agrees to provisions on the substitute form that are unrelated to the required certifications. A substitute Form W-9 that contains a separate signature line just for the certifications satisfies the requirement that the certifications be clearly stated. If a single signature line is used for the required certifications and other provisions, the certifications must be highlighted, boxed, printed in bold-face type, or presented in some other manner that causes the language to stand out from all other information contained on the substitute form. Additionally, the following statement must be presented to stand out in the same manner as described above and must appear immediately above the single signature line: “The Internal Revenue Service does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.” If you use a substitute form, you are required to provide the Form W-9 instructions to the payee only if he or she requests them. However, if the IRS has notified the payee that backup withholding applies, then you must instruct the payee to strike out the language in the certification that relates to underreporting. This instruction can be given orally or in writing. See item 2 of the Certification on Form W-9. You can replace “defined below” with “defined in the instructions” in item 3 of the Certification on Form W-9 when the instructions will not be provided to the payee except upon request. For more information, see Rev. Proc. 83-89,1983-2 C. B. 613; amplified by Rev. Proc. 96-26, which is on page 22 of Internal Revenue Bulletin 1996-8 at IRS.gov/pub/irs-irbs/irb96-08.pdf. TIN Applied For For interest and dividend payments and certain payments with respect to readily tradable instruments, the payee may return a properly completed, signed Form W-9 to you with “Applied For” written in Part I. This is an “awaiting-TIN” certificate. The payee has 60 calendar days, from the date you receive this certificate, to provide a TIN. If you do not receive the payee’s TIN at that time, you must begin backup withholding on payments. Reserve rule. You must backup withhold on any reportable payments made during the 60-day period if a payee withdraws more than $500 at one time, unless the payee reserves an amount equal to the current year’s backup withholding rate on all reportable payments made to the account. Alternative rule. You also may elect to backup withhold during this 60-day period, after a 7-day grace period, under one of the two alternative rules discussed below. Option 1. Backup withhold on any reportable payments if the payee makes a withdrawal from the account after the close of 7 business days after you receive the awaiting-TIN certificate. Treat as reportable payments all cash withdrawals in an amount up to the reportable payments made from the day after you receive the awaiting-TIN certificate to the day of withdrawal. Option 2. Backup withhold on any reportable payments made to the payee’s account, regardless of whether the payee makes any withdrawals, beginning no later than 7 business days after you receive the awaiting-TIN certificate. The 60-day exemption from backup withholding does not apply to any payment other than interest, dividends, and certain payments relating to readily tradable instruments. Any other reportable payment, such as nonemployee compensation, is subject to backup withholding immediately, even if the payee has applied for and is awaiting a TIN. Even if the payee gives you an awaiting-TIN certificate, you must backup withhold on reportable interest and dividend payments if the payee does not certify, under penalties of perjury, that the payee is not subject to backup withholding. If you do not collect backup withholding from affected payees as required, you may become liable for any uncollected amount. Payees Exempt From Backup Withholding The following payees are exempt from withholding with respect to the payments below, and should enter the corresponding exempt payee code on From W-9. You may rely on the payee’s claim of exemption unless you have actual knowledge that the exempt payee code and/or classification selected are not valid. Or if they are inconsistent with each other. -2- Instr. for Req. of Form W-9 (Rev. 10-2018)
In that case, you may rely on the Form W-9 for purpose of obianing the payee’s TIN, but you must treat the payee as non-exempt. If the payee failed to enter an exempt payee code, but the classification selected indicates that the payee is exempt, you may accept the classification and treat the payee as exempt unless you have actual knowledge that the classification is not valid. If the payee is not exempt, you are required to backup withhold on reportable payments if the payee 1. An organization exempt from tax under section 501 (a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401 (f)(2); 2. The United States or any of its agencies or instrumentalities; 3. A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions, agencies, or instrumentalities; 4. A foreign government or any of its political subdivisions, agencies, or instrumentalities; 5. A corporation; 6. A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession; 7. A futures commission merchant registered with the Commodity Futures Trading Commission; 8. A real estate investment trust; 9. An entity registered at all times during the tax year under the Investment Company Act of 1940; 10. A common trust fund operated by a bank under section 584(a); 11. A financial institution; 12. A middleman known in the investment community as a nominee or custodian; or 13. A trust exempt from tax under section 664 or described in section 4947. The following types of payments are exempt from backup withholding as indicated for payees listed in 1 through 13 above. Interest and dividend payments. All listed payees are exempt except the payee in item 7. Broker transactions. All payees listed in items 1 through 4 and 6 through 11 are exempt. Also, C corporations are exempt. A person registered under the Investment Advisers Act of 1940 who regularly acts as a broker also is exempt. Barter exchange transactions and patronage dividends. Only payees listed in items 1 through 4 are exempt. Payments reportable under sections 6041 and 6041A. Payees listed in items 1 through 5 are generally exempt. However, the following payments made to a corporation and reportable on Form 1099-MISC, Miscellaneous Income, are not exempt from backup withholding. Medical and health care payments. Attorneys’ fees (also gross proceeds paid to an attorney, reportable under section 6045(f)). Payments for services paid by a federal executive agency. (See Rev. Rul. 2003-66, which is on page 1115 of Intenal Revenue Bulletin 2003-26 at IRS.gov/pub/irs-irbs/irb03-26.pdf.) Payments made in settlement of payment card or third party network transactions. Only payees listed in items 1 through 4 are exempt. Payments Exempt From Backup Withholding Payments that are not subject to information reporting also are not subject to backup withholding. For details, see sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A, 6050N, and 6050W and their regulations. The following payments generally are exempt from backup withholding. Dividends and patronage dividends. Payments to nonresident aliens subject to withholding under section 1441. Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident alien partner. Payments of patronage dividends not paid in money. Payments made by certain foreign organizations. Section 404(k) distributions made by an ESOP. Interest payments Payments of interest on obligations issued by individuals. However, if you pay $600 or more of interest in the course of your trade or business to a payee, you must report the payment. Backup withholding applies to the reportable payment if the payee has not provided a TIN or has provided an incorrect TIN. Payments described in section 6049(b)(5) to nonresident aliens. Payments on tax-free covenant bonds under section 1451. Payments made by certain foreign organizations. Mortgage or student loan interest paid to you. Other types of payment Wages. Distributions from a pension, annuity, profit-sharing or stock bonus plan, any IRA, an owner-employee plan, or other deferred compensation plan. Distributions from a medical or health savings account and long-term care benefits. Certain surrenders of life insurance contracts. Distribution from qualified tuition programs or Coverdell ESAs. Gambling winnings if regular gambling winnings withholding is required under section 3402(q). However, if regular gambling winnings withholding is not required under section 3402(q), backup withholding applies if the payee fails to furnish a TIN. Real estate transactions reportable under section 6045(e). Cancelled debts reportable under section 6050P. Fish purchases for cash reportable under section 6050R. Payees and Account Holders Exempt From FATCA Reporting Reporting under chapter 4 (FATCA) with respect to U.S. persons generally applies only to foreign financial institutions (FFI) (including a branch of a U.S. financial institution that is treated as an FFI under an applicable intergovernmental agreement (IGA)). Thus, for example, a U.S. financial institution maintaining an account in the United States does not need to collect an exemption code for FATCA reporting. If you are providing a Form W-9, you may pre-populate the FATCA exemption code with “Not Applicable,” “N/A,” or a similar indication that an exemption from FATCA reporting does not apply. Any payee that provides such a form, however, cannot be treated as exempt from FATCA reporting. For details on the FATCA reporting requirements, including specific information regarding which financial institutions are required to report, see sections 1471 to 1474 and related regulations. See Regulations section 1.1471-3(d) (2) for when an FFI may rely on documentary Instr. for Req. of Form W-9 (Rev. 10-2018) -3-
evidence to treat a U.S. person as other than a specified U.S. person and see Regulations section 1.1471-3(f)(3) for when an FFI may presume a U.S. person as other than a specified U.S. person. If you receive a Form W-9 with a FATCA exemption code and you know or have reason to know the person is a specified U.S. person, you may not rely on the Form W-9 to treat the person as exempt from FATCA reporting. However, you may still rely on an otherwise completed Form W-9 to treat a person as a specified U.S. person. An exemption from FATCA reporting (or lack thereof) does not affect backup withholding as described earlier in these instructions. The following are not specified U.S. persons and are thus exempt from FATCA reporting: A. An organization exempt from tax under section 501(a), or any individual retirement plan as defined in section 7701(a)(37); B. The United States or any of its agencies or instrumentalities; C. A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions, agencies, or instrumentalities; D. A corporation the stock of which is regularly traded on one or more established securities markets, as described in Reg, section 1.1472-1(c)(1)(i); E. A corporation that is a member of the same expanded affiliated group as a corporation described in Reg. section 1.1472-1(c)(1)(i); F. A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any State; G. A real estate investment trust; H. A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940; I. A common trust fund as defined in section 584(a); J. A bank as defined in section 581; K. A broker; L. A trust exempt from tax under section 664 or described in section 4947; or M. A tax-exempt trust under a section 403(b) plan or section 457(g) plan. Joint Foreign Payees If the first payee listed on an account gives you a Form W-8 or a similar statement signed under penalties of perjury, backup withholding applies unless: 1. Every joint payee provides the statement regarding foreign status, or 2. Any one of the joint payees who has not established foreign status gives you a TIN. If any one of the joint payees who has not established foreign status gives you a TIN, use that number for purposes of backup withholding and information reporting. For more information on foreign payees, see the Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY. Names and TINs To Use for Information Reporting Show the full name and address as provided on Form W-9 on the information return filed with the IRS and on the copy furnished to the payee. If the payee has marked their address “NEW”, you should update your records. If you made payments to more than one payee or the account is in more than one name, enter on the first name line of the information return only the name of the payee whose TIN is shown on Form W-9. You may show the names of any other individual payees in the area below the first name line on the information return. Forms W-9 showing an ITIN must have the name exactly as shown on line 1a of the Form W-7 application. For more information on the names and TINs to use for information reporting, see section J of the General Instructions for Certain Information Returns. Notices From the IRS The IRS will send you a notice if the payee’s name and TIN on the information return you filed do not match the IRS’s records. (See Taxpayer Identification Number (TIN) Matching.) You may have to send a “B” notice to the payee to solicit another TIN. Pub. 1281, Backup Withholding for Missing and Incorrect Name/TIN(s), contains copies of the two types of “B” notices. Taxpayer Identification Number (TIN) Matching TIN Matching allows a payer or authorized agent who is required to file Forms 1099-B, DIV, INT, K, MISC, OID, and/or PATR to match TIN and name combinations with IRS records before submitting the forms to the IRS. TIN Matching is one of the e-services products that is offered and is accessible through the IRS website. Go to IRS.gov and enter e-services in the search box. It is anticipated that payers who validate the TIN and name combinations before filing information returns will receive fewer backup withholding (CP2100) notices and penalty notices. Additional Information For more information on backup withholding, see Pub. 1281. -4- Instr. for Req. of Form W-9 (Rev. 10-2018)
Questions and requests for assistance may be directed to the information agent and exchange agent at its address and telephone number set forth below. Additional copies of the Prospectus, this Letter of Transmittal or other materials related to the exchange offers may be obtained from the information agent and exchange agent or from brokers, dealers, commercial banks or trust companies.
The information agent and exchange agent for the exchange offers is:
U. S. Bank National Association
By Mail or in Person
U.S. Bank National Association
111 Fillmore Avenue
St. Paul, MN 55107-1402
Attention: Specialized Finance
By Email or Facsimile Transmission (for Eligible Institutions Only)
Email: Cts.specfinance@usbank.com
Facsimile: (651) 466-7367
For Information and to Confirm by Telephone
(800) 934-6802
Exhibit 99.3
Albemarle Corporation
Albemarle Wodgina Pty Ltd
OFFERS TO EXCHANGE
$200,000,000 OUTSTANDING FLOATING RATE NOTES DUE 2022
FOR
REGISTERED FLOATING RATE NOTES DUE 2022
AND
$300,000,000 OUTSTANDING 3.450% SENIOR NOTES DUE 2029
FOR
REGISTERED 3.450% SENIOR NOTES DUE 2029
PURSUANT TO THE PROSPECTUS
DATED , 2020
THE EXCHANGE OFFERS WILL EXPIRE AT 11:59 p.m., NEW YORK CITY TIME, ON , 2020 UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE EXCHANGE OFFERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO 11:59 p.m., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Registered Holders and Depository Trust Company Participants:
We are enclosing herewith the material listed below relating to the offers by Albemarle Corporation, a Virginia corporation (“Albemarle”), to exchange all of its issued and outstanding Floating Rate Notes due 2022 (the “2022 Restricted Notes”) for an equivalent principal amount of registered Floating Rate Notes due 2022 (the “2022 Exchange Notes”) and Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia and a wholly owned subsidiary of Albemarle (“Wodgina” and together with Albemarle, the “issuers”), to exchange all of its issued and outstanding 3.450% Senior Notes due 2029 (the “2029 Restricted Notes”) for an equivalent principal amount of registered 3.450% Senior Notes due 2029 (the “2029 Exchange Notes”), respectively, upon the terms and subject to the conditions set forth in the prospectus, dated , 2020 (the “Prospectus”), and the related Letter of Transmittal (which together constitute the “exchange offers”). Wodgina’s obligations under the 2029 Restricted Notes are fully and unconditionally on a senior unsecured basis (the “2029 Restricted Notes Guarantee”) by Albemarle, and the 2029 Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the “2029 Exchange Notes Guarantee” and together with the 2029 Restricted Notes Guarantee, the “2029 Notes Guarantee”) by Albemarle. The 2022 Restricted Notes and the 2029 Restricted Notes are collectively referred to as the “Restricted Notes.” The 2022 Exchange Notes and the 2029 Exchange Notes are collectively referred to as the “Exchange Notes.” All references to the Exchange Notes and Restricted Notes include references to the related guarantees, as appropriate.
Enclosed herewith are copies of the following documents:
1. Prospectus, dated , 2020;
2. Letter of Transmittal (together with accompanying IRS Form W-9 and related Guidelines);
3. Letter that may be sent to your clients for whose account you hold Restricted Notes in your name or in the name of your nominee; and
4. Letter that may be sent from your clients to you with such clients’ instruction with regard to the exchange offers (included in item 3 above).
We urge you to contact your clients promptly. Please note that the exchange offers will expire on the Expiration Date unless extended. The exchange offers are not conditioned upon any minimum number of Restricted Notes being tendered.
Pursuant to the Letter of Transmittal, each holder of Restricted Notes will represent to Albemarle or Wodgina, as applicable, that:
| • | it is not an affiliate of Albemarle or Wodgina within the meaning of Rule 405 of the Securities Act or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable; |
| • | it is not participating, and it has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
| • | if it is a broker-dealer, it has not entered into any arrangement or understanding with Albemarle or Wodgina or any of their affiliates to distribute the Exchange Notes; |
| • | it is acquiring the Exchange Notes in the ordinary course of its business; and |
| • | it is not acting on behalf of any person or entity that could not truthfully make these representations. |
If the exchange offeree is a broker-dealer holding Restricted Notes acquired for its own account as a result of market-making activities or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Notes received in respect of such Restricted Notes pursuant to the exchange offers.
If the holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Restricted Notes, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes.
The enclosed Letter to Clients contains an authorization by the beneficial owners of the Restricted Notes for you to make the foregoing representations.
Albemarle or Wodgina, as applicable, will not pay any fee or commission to any broker or dealer or to any other persons (other than the exchange agent) in connection with the solicitation of tenders of Restricted Notes pursuant to the exchange offers. Albemarle or Wodgina, as applicable, will pay or cause to be paid any transfer taxes payable on the transfer of Restricted Notes to it, except as otherwise provided in Instruction 6 of the enclosed Letter of Transmittal.
Additional copies of the enclosed materials may be obtained from the information agent and exchange agent by calling U.S. Bank National Association at (651) 466-7367.
Very truly yours,
ALBEMARLE CORPORATION
ALBEMARLE WODGINA PTY LTD
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Exhibit 99.4
Albemarle Corporation
Albemarle Wodgina Pty Ltd
OFFERS TO EXCHANGE
$200,000,000 OUTSTANDING FLOATING RATE NOTES DUE 2022
FOR
REGISTERED FLOATING RATE NOTES DUE 2022
AND
$300,000,000 OUTSTANDING 3.450% SENIOR NOTES DUE 2029
FOR
REGISTERED 3.450% SENIOR NOTES DUE 2029
PURSUANT TO THE PROSPECTUS
DATED , 2020
THE EXCHANGE OFFERS WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON , 2020 UNLESS EXTENDED (THE “EXPIRATION DATE”). TENDERS IN THE EXCHANGE OFFERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO 11:59 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Our Clients:
We are enclosing a prospectus, dated , 2020 (the “Prospectus”) of Albemarle Corporation, a Virginia corporation (“Albemarle”) and Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia and a wholly owned subsidiary of Albemarle (“Wodgina” and together with Albemarle, the “issuers”), and a related Letter of Transmittal (which together constitute the “exchange offers”) relating to the offers by Albemarle to exchange all of its issued and outstanding Floating Rate Notes due 2022 (the “2022 Restricted Notes”) for an equivalent principal amount of registered Floating Rate Notes due 2022 (the “2022 Exchange Notes”) and Wodgina to exchange all of its issued and outstanding 3.450% Senior Notes due 2029 (the “2029 Restricted Notes”) for an equivalent principal amount of registered 3.450% Senior Notes due 2029 (the “2029 Exchange Notes”), respectively, pursuant to a registration statement of which the Prospectus is a part, upon the terms and subject to the conditions set forth in the exchange offers. Wodgina’s obligations under the 2029 Restricted Notes are fully and unconditionally on a senior unsecured basis (the “2029 Restricted Notes Guarantee”) by Albemarle, and the 2029 Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the “2029 Exchange Notes Guarantee” and together with the 2029 Restricted Notes Guarantee, the “2029 Notes Guarantee”) by Albemarle. The 2022 Restricted Notes and the 2029 Restricted Notes are collectively referred to as the “Restricted Notes.” The 2022 Exchange Notes and the 2029 Exchange Notes are collectively referred to as the “Exchange Notes.” All references to the Exchange Notes and Restricted Notes include references to the related guarantees, as appropriate.
The exchange offers are not conditioned upon any minimum number of Restricted Notes being tendered.
We are the holder of record of Restricted Notes held by us for your account. A tender of such Restricted Notes can be made only by us as the record holder and pursuant to your instructions. The enclosed Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Restricted Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of the Restricted Notes held by us for your account pursuant to the terms and conditions of the exchange offers. We also request that you confirm that we may on your behalf make the representations and warranties contained in the Letter of Transmittal.
PLEASE RETURN YOUR INSTRUCTIONS TO US IN THE ENCLOSED ENVELOPE WITHIN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE.
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INSTRUCTIONS TO REGISTERED HOLDER AND/OR
DEPOSITORY TRUST COMPANY PARTICIPANT
To Registered Holder and/or Participant of The Depository Trust Company:
The undersigned hereby acknowledges receipt of the prospectus, dated , 2020 (the “Prospectus”) of Albemarle Corporation, a Virginia corporation (“Albemarle”) and Albemarle Wodgina Pty Ltd, a proprietary limited company incorporated under the laws of Australia and a wholly owned subsidiary of Albemarle (“Wodgina” and together with Albemarle, the “issuers”) and the accompanying Letter of Transmittal, that together constitute the offers by Albemarle to exchange all of its issued and outstanding Floating Rate Notes due 2022 (the “2022 Restricted Notes”) for an equivalent principal amount of registered Floating Rate Notes due 2022 (the “2022 Exchange Notes”) and Wodgina to exchange all of its issued and outstanding 3.450% Senior Notes due 2029 (the “2029 Restricted Notes”) for an equivalent principal amount of registered 3.450% Senior Notes due 2029 (the “2029 Exchange Notes”), respectively, pursuant to a registration statement of which the Prospectus is a part, upon the terms and subject to the conditions set forth in the exchange offers. Certain terms used but not defined herein have the meanings ascribed to them in the Prospectus. Wodgina’s obligations under the 2029 Restricted Notes are fully and unconditionally on a senior unsecured basis (the “2029 Restricted Notes Guarantee”) by Albemarle, and the 2029 Exchange Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the “2029 Exchange Notes Guarantee” and together with the 2029 Restricted Notes Guarantee, the “2029 Notes Guarantee”) by Albemarle. The 2022 Restricted Notes and the 2029 Restricted Notes are collectively referred to as the “Restricted Notes.” The 2022 Exchange Notes and the 2029 Exchange Notes are collectively referred to as the “Exchange Notes.” All references to the Exchange Notes and Restricted Notes include references to the related guarantees, as appropriate.
This will instruct you, the registered holder and/or participant of The Depository Trust Company, as to the action to be taken by you relating to the exchange offers with respect to the Restricted Notes held by you for the account of the undersigned.
The aggregate face amount of the Restricted Notes held by you for the account of the undersigned is (fill in amount):
$ of the Floating Rate Notes due 2022.
$ of the 3.450% Senior Notes due 2029.
With respect to the exchange offers, the undersigned hereby instructs you (check all applicable boxes):
| ☐ | To TENDER the following Restricted Notes held by you for the account of the undersigned (insert principal amount of Restricted Notes to be tendered (if any)): |
| ☐ | $ of the Floating Rate notes due 2022. |
| ☐ | $ of the 3.450% Senior Notes due 2029. |
| ☐ | NOT to TENDER any Restricted Notes held by you for the account of the undersigned. |
If the undersigned instructs you to tender the Restricted Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including but not limited to the representations, that:
| • | it is not an affiliate of Albemarle or Wodgina within the meaning of Rule 405 of the Securities Act or, if it is such an affiliate, it will comply with the registration and prospectus delivery requirements of the Securities Act, to the extent applicable; |
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| • | it is not participating, and it has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act; |
| • | if it is a broker-dealer, it has not entered into any arrangement or understanding with Albemarle or Wodgina or any of their affiliates to distribute the Exchange Notes; |
| • | it is acquiring the Exchange Notes in the ordinary course of its business; and |
| • | it is not acting on behalf of any person or entity that could not truthfully make these representations. |
If the exchange offeree is a broker-dealer holding Restricted Notes acquired for its own account as a result of market-making activities or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Notes received in respect of such Restricted Notes pursuant to the exchange offers.
If the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Restricted Notes, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes.
SIGN HERE
Name(s) of beneficial owner(s):
Signature(s):
Name(s):
(Please Print)
Address(es):
Telephone Number(s):
Taxpayer Identification or Social Security Number(s):
Date:
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