Medtronic plc 8-K, filed Mar 30, 2023
Medtronic plc (MDT)
About this 8-K
Medtronic plc filed this 8-K on March 30, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in its Charter)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(Address of principal executive offices)
(Registrant’s telephone number, including area code): +
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement. |
Notes Offering
On March 30, 2023, Medtronic Global Holdings S.C.A. (“Medtronic Luxco”), an indirect wholly owned subsidiary of Medtronic public limited company (“Medtronic plc”), issued $1,000,000,000 aggregate principal amount of its 4.250% Senior Notes due 2028 (the “2028 Notes”) and $1,000,000,000 aggregate principal amount of its 4.500% Senior Notes due 2033 (the “2033 Notes” and together with the 2028 Notes, the “Notes”), in an underwritten offering (the “Offering”) pursuant to a registration statement on Form S-3 (the “Registration Statement”) (File No. 333-270272) filed with the Securities and Exchange Commission (the “Commission”) on March 3, 2023, and a preliminary prospectus supplement and prospectus supplement filed with the Commission related to the offering of the Notes. The Notes are fully and unconditionally guaranteed by Medtronic plc and Medtronic, Inc., an indirect wholly owned subsidiary of Medtronic plc (the “Guarantees,” and together with the Notes, the “Securities”).
Medtronic Luxco expects to receive net proceeds from the Offering of approximately $1.98 billion, after deducting the underwriting discount and estimated offering expenses payable by Medtronic Luxco. Medtronic Luxco expects to use the net proceeds of the Offering to prepay a portion of the ¥297 billion, or approximately $2.3 billion, of indebtedness outstanding under the Japanese-yen denominated term loan agreement by and among Medtronic Luxco, Medtronic plc, Medtronic, Inc., and Mizuho Bank, Ltd. as administrative agent and as lender (the “JPY term loan”).
Indenture
The Notes were issued under an indenture dated as of March 28, 2017 (the “Base Indenture”), among Medtronic Luxco, Medtronic, Inc., Medtronic plc and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, N.A., as trustee (the “Trustee”), as amended by the Sixth Supplemental Indenture dated as of February 22, 2023 (the “Sixth Supplemental Indenture”) among Medtronic Luxco, Medtronic, Inc., Medtronic plc and the Trustee, and as supplemented by the Seventh Supplemental Indenture dated as of March 30, 2023 (the “Seventh Supplemental Indenture” and together with the Sixth Supplemental Indenture and the Base Indenture, the “Indenture”) among Medtronic Luxco, Medtronic, Inc., Medtronic plc and the Trustee.
The 2028 Notes will mature on March 30, 2028 and the 2033 Notes will mature on March 30, 2033. The 2028 Notes will bear interest at a rate of 4.250% per annum. The 2033 Notes will bear interest at a rate of 4.500% per annum.
Prior to the applicable Par Call Date (as defined below), Medtronic Luxco will have the option to redeem any series of the Notes, in whole at any time or in part from time to time, at a redemption price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest in respect of the Notes being redeemed (not including any portion of the payments of interest accrued but unpaid as of the date of redemption and assuming that such Notes to be redeemed matured on their applicable Par Call Date), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year of twelve 30-day months), at the treasury rate plus 15 basis points in the case of the 2028 Notes and 20 basis points in the case of the 2033 Notes, plus, in each case, accrued and unpaid interest thereon, if any, to, but excluding, the date of redemption. “Par Call Date” means: February 29, 2028 in the case of the 2028 Notes and December 30, 2032 in the case of the 2033 Notes.
In addition, on and after the applicable Par Call Date, Medtronic Luxco will have the option to redeem any series of the Notes, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the date of redemption.
The Notes will be general unsecured senior obligations of Medtronic Luxco and will rank equally in right of payment with all of Medtronic Luxco’s other existing and future unsecured senior indebtedness and will rank senior to any subordinated indebtedness that Medtronic Luxco may incur. The Guarantees will rank equally in right of payment with all of Medtronic plc’s and Medtronic, Inc.’s other existing and future unsecured senior indebtedness
and will rank senior to any subordinated indebtedness from time to time outstanding that Medtronic plc or Medtronic, Inc. may incur, and be structurally subordinated to all existing and any future obligations of each of Medtronic plc’s subsidiaries (other than Medtronic Luxco and Medtronic, Inc.).
Upon the occurrence of an event of default with respect to the Notes, which includes payment defaults, defaults in the performance of certain covenants, and bankruptcy and insolvency related defaults, Medtronic Luxco’s obligations under the Notes may be accelerated, in which case the entire principal amount of the Notes would be immediately due and payable.
Medtronic plc and its affiliates maintain ordinary banking relationships and credit facilities with the Trustee. In addition, the Trustee is the trustee for certain of Medtronic plc’s affiliates’ other debt securities, and from time to time provides services relating to Medtronic plc’s investment management, stock repurchase and foreign currency hedging programs.
The above description of the Base Indenture, the Sixth Supplemental Indenture and the Seventh Supplemental Indenture is qualified in its entirety by reference to the Base Indenture, the Sixth Supplemental Indenture and the Seventh Supplemental Indenture. The executed Base Indenture was previously filed as Exhibit 4.1 to the Current Report on Form 8-K filed by Medtronic plc on March 28, 2017. The executed Sixth Supplemental Indenture was previously filed as Exhibit 4.2 to the Registration Statement on Form S-3 (File No. 333-270272) filed by Medtronic plc on March 3, 2023 and is filed as Exhibit 4.1 hereto. The executed Seventh Supplemental Indenture is filed as Exhibit 4.2 hereto. Each of the foregoing documents is incorporated herein and into the Registration Statement by reference.
| Item 7.01. | Regulation FD Disclosure. |
Medtronic plc expects the Offering and the use of proceeds therefrom, when combined with other transactions recently executed in connection with the Offering, to have an immaterial impact on interest expense, net.
| Item 8.01. | Other Events. |
Underwriting Agreement
On March 23, 2023, Medtronic Luxco, Medtronic plc and Medtronic, Inc. entered into an underwriting agreement (the “Underwriting Agreement”) with the underwriters listed therein, for which Barclays Capital Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC acted as representatives, to issue and sell the Notes to the underwriters.
Certain of the underwriters party to the Underwriting Agreement and their respective affiliates have in the past performed commercial banking, investment banking and advisory services for Medtronic plc and its affiliates from time to time for which they have received customary fees and reimbursement of expenses and may, from time to time, engage in transactions with and perform services for Medtronic plc in the ordinary course of their business for which they may receive customary fees and reimbursement of expenses. Certain of the underwriters or their respective affiliates have been or are lenders under one or more of Medtronic, Inc.’s and Medtronic Luxco’s credit facilities and affiliates of some of the underwriters are lenders under the JPY term loan.
A copy of the Underwriting Agreement is attached hereto as Exhibit 1.1 and is incorporated by reference into the Registration Statement. The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit.
In connection with the Offering, Medtronic plc is filing as Exhibits 5.1, 5.2, 5.3 and 5.4 hereto opinions of counsel addressing the validity of the Notes and the Guarantees and certain related matters. Such opinions are incorporated by reference into the Registration Statement.
| Item 9.01. | Exhibits. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| MEDTRONIC PUBLIC LIMITED COMPANY | ||||||
| By | /s/ Karen L. Parkhill | |||||
| Date: March 30, 2023 | Karen L. Parkhill | |||||
| Executive Vice President and Chief Financial Officer | ||||||
Exhibit 1.1
Execution Version
UNDERWRITING AGREEMENT
$2,000,000,000
MEDTRONIC GLOBAL HOLDINGS S.C.A.
4.250% Senior Notes due 2028
4.500% Senior Notes due 2033
Underwriting Agreement
March 23, 2023
Barclays Capital Inc.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (société en commandite par actions), incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at Espace Monterey, 40, Avenue Monterey, Ground Floor, L 2163 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies (Registre de commerce et des sociétés, Luxembourg) (the “RCS”) under number B 191.129 (the “Company”) acting through its general partner, Medtronic Global Holdings GP S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 40, Avenue Monterey, L 2163 Luxembourg, Grand Duchy of Luxembourg and
registered with the RCS under number B 191.031, proposes to issue and sell to the several Underwriters listed in Schedule I hereto (the “Underwriters”), for whom Barclays Capital Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC are acting as representatives (the “Representatives”), $1,000,000,000 principal amount of its 4.250% Senior Notes due 2028 (the “2028 Notes”) and $1,000,000,000 principal amount of its 4.500% Senior Notes due 2033 (the “2033 Notes” and together with the 2028 Notes, the “Securities”). The Securities will be issued pursuant to the Indenture dated as of March 28, 2017 (the “Base Indenture”) among the Company, Medtronic Public Limited Company, a company incorporated under the laws of Ireland (“Parent”), Medtronic, Inc., a Minnesota corporation (“Medtronic, Inc.”), and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (the “Trustee”), as supplemented by a supplemental indenture to be dated the Closing Date (as defined below) (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) among the Company, Parent, Medtronic, Inc. and the Trustee. Each of Parent and Medtronic, Inc. (together, the “Guarantors”), will fully and unconditionally guarantee the Securities on a senior unsecured basis (the “Guarantees”).
The Company and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company and the Guarantors have prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-270272), including a prospectus (the “Base Prospectus”), relating to debt securities to be issued from time to time by the Company. The Company and the Guarantors have also filed, or propose to file, with the Commission pursuant to Rule 424 under the Securities Act a prospectus supplement specifically relating to the Securities (the “Prospectus Supplement”). The registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement”; and as used herein, the term “Prospectus” means the Base Prospectus as supplemented by the Prospectus Supplement specifically relating to the Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities and the term “Preliminary Prospectus” means the preliminary Prospectus Supplement specifically relating to the Securities together with the Base Prospectus. Any reference in this underwriting agreement (the “Agreement”) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed
2
to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the Company has prepared certain information which information is identified in Annex A of this Agreement (collectively, the “Time of Sale Information”).
2. Purchase and Sale of the Securities. (a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule I hereto at a price equal to: (i) 99.343% of the principal amount of 2028 Notes and (ii) 98.930% of the principal amount of 2033 Notes, plus accrued interest, if any, from March 30, 2023 to the Closing Date. The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017 at 10:00 A.M., New York City time, on March 30, 2023, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery of the Securities in book-entry form registered in the name of Cede & Co., as nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
3
(e) The Company and the Guarantors acknowledge and agree that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the Guarantors or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Underwriters of the Company, the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or the Guarantors or any other person.
3. Representations and Warranties of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, represent and warrant to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and each of the Guarantors makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that none of the Company nor any Guarantor makes any representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
4
(c) Issuer Free Writing Prospectus. The Company and the Guarantors (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii), (iii) and (iv) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Registration Statement, (iii) the Preliminary Prospectus, (iv) the Prospectus, (v) the documents listed on Annex A hereto as constituting the Time of Sale Information and (vi) any electronic road show or any other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, did not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company or any Guarantor. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or any Guarantor or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any
5
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company and the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and during the Prospectus Delivery Period (as defined in Section 4(b)) any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The consolidated historical financial statements and schedules of Parent and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the financial condition, results of operations and cash flows of Parent as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
6
(g) No Material Adverse Change. Since the date of the most recent financial statements of Parent included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus, (i) except for regular quarterly dividends payable on the ordinary shares, par value $0.0001 per share, of Parent in amounts per share that are consistent with past practice, there has not been any material change in the capital stock or long-term debt of Parent or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by Parent on any class of capital stock, or any material adverse change, or any development that would reasonably be expected to result in a material adverse change, in or affecting the business, properties, management, financial position or results of operations of Parent and its subsidiaries taken as a whole; (ii) neither Parent nor any of its subsidiaries has entered into any transaction or agreement that is material to Parent and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to Parent and its subsidiaries taken as a whole; and (iii) Parent and its subsidiaries, taken as a whole, have not sustained any material loss or interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(h) Organization and Good Standing. Parent, the Company and Medtronic, Inc. have each been duly organized and are validly existing as entities in good standing under the laws of Ireland, Luxembourg and Minnesota, respectively, with corporate power and authority to own their properties and conduct their business as described in the Registration Statement, the Time of Sale Information and the Prospectus, and have been duly qualified as a foreign corporation for the transaction of business and are in good standing under the laws of each other jurisdiction in which they own or lease properties or conduct any business so as to require such qualification, except where the failure to be so qualified in any such jurisdiction would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, management, financial position or results of operations of Parent and its subsidiaries, taken as a whole (a “Material Adverse Effect”); and each of Parent’s subsidiaries that constitutes a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) (collectively, the “Significant Subsidiaries”) has been duly organized and is validly existing in good standing under the laws of its jurisdiction of organization except where the failure to be so organized, qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect.
(i) Capitalization. All the outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set forth in the Registration Statement, the Time of Sale Information and the Prospectus, all outstanding shares of capital stock of each Significant Subsidiary are owned by Parent either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, lien or encumbrance.
7
(j) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.
(k) The Indenture. The Base Indenture has been duly authorized, executed and delivered by the Company and each of the Guarantors. The Seventh Supplemental Indenture has been duly authorized by the Company and each of the Guarantors. On the Closing Date, the Seventh Supplemental Indenture will be duly executed and delivered by the Company and each of the Guarantors and, when duly executed and delivered in accordance with its terms by each of the other parties thereto, will constitute valid and legally binding agreements of the Company and each of the Guarantors enforceable against the Company and each of the Guarantors in accordance with their terms, except as enforceability may be limited by applicable mandatory law provisions or bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); and on the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(l) The Securities and the Guarantees. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Descriptions of the Transaction Documents. Each of this Agreement, the Securities and the Indenture (including each Guarantee set forth therein) (collectively, the “Transaction Documents”) conforms in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and the Prospectus.
(n) No Violation or Default. None of Parent, the Company or any of the Significant Subsidiaries is in violation or default of (i) any provision of its certificate of incorporation, articles of association, articles of incorporation, bylaws or similar governing or organizational documents (the “Governing Documents”); (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule,
8
regulation, judgment, order or decree applicable to Parent, the Company or any of the Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over Parent, the Company or such Significant Subsidiary or any of its properties, as applicable, except, in the case of clauses (ii) and (iii), where such violation or default would not, individually or in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. None of the execution and delivery of any of the Transaction Documents by the Company and each of the Guarantors, the issuance and sale of the Securities or the Guarantees or the consummation by the Company and the Guarantors of any other transaction contemplated by the Transaction Documents will result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of Parent, the Company or any of the Significant Subsidiaries pursuant to (i) the Governing Documents of Parent, the Company or any of the Significant Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which Parent or any of its subsidiaries is a party or bound or to which its or their property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over Parent or any of its subsidiaries or any of its or their properties; except, in the case of clauses (ii) and (iii), where such violation, breach, conflict or lien would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents, the issuance and sale of the Securities (and the Guarantees) and compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for the (i) registration of the Securities under the Securities Act, (ii) the qualification of the Indenture under the Trust Indenture Act or (iii) such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(q) Legal Proceedings. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Parent, the Company or any of the Significant Subsidiaries or its or their property is pending or, to the best knowledge of Parent, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of any of the Transaction Documents, or the consummation of any of the transactions contemplated hereby or thereby or (ii) could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
9
(r) Independent Accountants. PricewaterhouseCoopers LLP, who have audited certain financial statements of Parent and its subsidiaries, are, to the knowledge of Parent, an independent registered public accounting firm with respect to Parent and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(s) Title to Intellectual Property. Except as would not, individually or in the aggregate, have a Material Adverse Effect, Parent, the Company and the Significant Subsidiaries own, possess, license or have other rights to use on reasonable terms, all patents, trademarks and service marks, trade names, copyrights, domain names (in each case including all registrations and applications to register same), inventions, trade secrets, technology, know-how, and other intellectual property (collectively, the “Intellectual Property”) necessary for the conduct of Parent’s, the Company’s and the Significant Subsidiaries’ respective businesses as now conducted. Except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus and except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) Parent, the Company and the Significant Subsidiaries own, or have rights to use under license, all such Intellectual Property free and clear of all adverse claims, liens or other encumbrances; (ii) to the knowledge of Parent, there is no infringement, misappropriation or other violation by any third parties of any such Intellectual Property; (iii) there is no pending or, to the knowledge of Parent, threatened action, suit, proceeding or claim by any third party challenging Parent’s, the Company’s or the Significant Subsidiaries’ rights in or to any such Intellectual Property, and the Company and the Guarantors are unaware of any facts which would form a reasonable basis for any such claim, action, suit or proceeding; (iv) there is no pending or, to the knowledge of Parent, threatened action, suit, proceeding or claim by any third party challenging the validity, scope or enforceability of any such Intellectual Property, and the Company is unaware of any facts that would form a reasonable basis for any such claim, action, suit or proceeding; (v) there is no pending or, to the knowledge of Parent, threatened action, suit, proceeding or claim by any third party that Parent, the Company or any Significant Subsidiary infringes, misappropriates or otherwise violates any Intellectual Property rights of any third party, and Parent is unaware of any other fact which would form a reasonable basis for any such claim, action, suit or proceeding; and (vi) to the knowledge of Parent, there is no valid and subsisting patent or published patent application that would preclude Parent, the Company and the Significant Subsidiaries from practicing any Intellectual Property necessary for the conduct of Parent’s, the Company’s and the Significant Subsidiaries’ respective businesses as now conducted.
(t) Investment Company Act. Neither the Company nor any Guarantor is, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Time of Sale Information and the Prospectus will be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
10
(u) Taxes. The Company and each of the Guarantors have filed all non-U.S., U.S. federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect and except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus) and have paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith or which would not, individually or in the aggregate, have a Material Adverse Effect and except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(v) Compliance with Environmental Laws. Parent, the Company and the Significant Subsidiaries are (i) in compliance with any and all applicable non-U.S., U.S. federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability known to management of Parent under any Environmental Law, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, or except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto). Except as set forth in the Registration Statement, the Time of Sale Information and the Prospectus, neither Parent, the Company nor any of the Significant Subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(w) Accounting Controls. Parent, the Company and each of the Significant Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects.
11
(x) Compliance with Money Laundering Laws. The operations of Parent and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Parent or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of Parent, threatened.
(y) Insurance. Parent, the Company and the Significant Subsidiaries self-insure against losses relating to their properties, operations, personnel and businesses, and have insurance covering their respective directors and officers which, in the Company’s and the Guarantors’ reasonable belief, is in an amount and insures against such losses and risks as are adequate to protect such directors and officers and the Parent, the Company and the Significant Subsidiaries, and such policy is in full force and effect in all material respects, except where failure to maintain such policy would not reasonably be expected to result in a Material Adverse Effect and except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus (exclusive of any amendment or supplement thereto).
(z) Compliance with OFAC. None of Parent, the Company or any of its Significant Subsidiaries or, to the knowledge of Parent, any director, officer, employee or affiliate of Parent, the Company or the Significant Subsidiaries is currently the target of any U.S. sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Department of State, the United Nations Security Council (“UNSC”), the European Union or the United Kingdom (collectively, “Sanctions”), nor is the Parent, Company or any of its Significant Subsidiaries located, organized or resident in a country or territory that is currently the subject of comprehensive Sanctions (currently, Crimea, the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic and any other Covered Region of Ukraine as may be identified by the Secretary of the Treasury, in consultation with the Secretary of State, pursuant to Executive Order 14065, Cuba, Iran, North Korea and Syria). The Company and the Guarantors will not directly or, to the knowledge of Parent, indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently the target of Sanctions or in any other manner that would result in a violation of Sanctions by any person participating in this Agreement.
(aa) No Unlawful Payments. Each of Parent and its subsidiaries and, to the knowledge of Parent, all directors, officers or employees of Parent or any of its subsidiaries (i) complies and have complied in all material respects with the Bribery Act 2010 of the United Kingdom, the OECD Convention on Bribery of Foreign Public Officials in International Business Transactions, the Foreign Corrupt Practices Act of
12
1977, as amended, and the rules and regulations thereunder and (ii) with respect to Parent and its subsidiaries, have instituted and maintain and will continue to maintain policies and procedures designed to promote and ensure continued compliance with all applicable anti-bribery and anti-corruption laws.
(bb) No Registration Rights. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, no person has the right to require Parent or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(cc) No Stabilization. Neither the Company nor any of the Guarantors has taken, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of the Securities.
(dd) Sarbanes-Oxley Act. There is and has been no failure on the part of Parent or any of Parent’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(ee) Status under the Securities Act. Neither the Company nor any Guarantor is an ineligible issuer, and the Company and the Guarantors are well-known seasoned issuers, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
(ff) Certain Statements. The statements in the Registration Statement, the Time of Sale Information and Prospectus under “Certain Tax Considerations” and, except for the Underwriter Information (as defined below), “Underwriting” fairly summarize the matters therein described in all material respects.
(gg) Stamp Taxes. There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid by or on behalf of the Underwriters in Luxembourg or Ireland or any political subdivision or taxing authority thereof in connection with the execution and delivery of the Transaction Documents or the offer or sale of the Securities, except in the case of voluntary registration of the Transaction Documents in Luxembourg and/or the registration of the Transaction Documents in Luxembourg, which will be required where such documents are physically attached (annexé(s)) to a public deed or to any other document subject to mandatory registration, in which case either a nominal registration duty or an ad valorem duty (of, for instance, 0.24 (zero point twenty four) percent of the amount of the payment obligation mentioned in the document so registered) will be payable depending on the nature of the document to be registered.
13
(hh) No Withholding Tax. All payments to be made by the Company or the Guarantors to the Underwriters on or by virtue of the execution delivery, performance or enforcement of the Transaction Documents and, except as disclosed in each of the Time of Sale Information and the Prospectus, all interest, principal, premium, if any, additional amounts, if any, and other payments under the Transaction Documents, under the current laws and regulations of the United States of America, Luxembourg or Ireland, any political subdivision thereof or any applicable taxing jurisdiction (each, a “Taxing Jurisdiction”), will not be subject to withholding, duties, levies, deductions, charges or other taxes under the current laws and regulations of the Taxing Jurisdiction and are otherwise payable free and clear of any other withholding, duty, levy, deduction, charge or other tax in the Taxing Jurisdiction and without the necessity of obtaining any governmental authorization in the Taxing Jurisdiction.
(ii) No Immunity. Neither Parent nor any of its subsidiaries nor any of its or their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Luxembourg or Ireland.
(jj) Cybersecurity; Data Protection. Except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) the Parent’s, the Company’s and the Significant Subsidiaries’ information technology, computers, systems, networks, hardware, software and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Parent, the Company and the Significant Subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants; (ii) the Parent, the Company and the Significant Subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Data”)) used in connection with their businesses; (iii) to the knowledge of the Parent, there has been no breach, unauthorized use or access or compromise of any IT Systems; and (iv) the Parent, the Company and the Significant Subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations applicable, in each case, to the Parent, the Company and the Significant Subsidiaries relating to the security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
(kk) Privacy. Except as would not, individually or in the aggregate, have a Material Adverse Effect, (i) the Parent, the Company and the Significant Subsidiaries have complied, and are presently in compliance, in all material respects, with all applicable state, federal and international data privacy and security laws and regulations, including without limitation, to the extent applicable, the U.S. Health
14
Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Data Security Obligations”); (ii) neither the Parent, the Company nor the Significant Subsidiaries has received any notification of or complaint regarding, and are aware of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance by the Parent, the Company and the Significant Subsidiaries with any Data Security Obligation; (iii) there is no pending, or to the knowledge of the Parent, threatened, action, suit or proceeding by or before any applicable court or governmental agency, authority or body alleging non-compliance by the Parent, the Company and the Significant Subsidiaries with any Data Security Obligation; (iv) to ensure compliance with the Data Security Obligations, the Parent, the Company and the Significant Subsidiaries have taken steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the use, collection, storage, disclosure or other processing of Data that is subject to the Data Security Obligations (the “Policies”) to protect such Data against loss and unauthorized access, use, modification, disclosure or other misuse; and (v) the Parent, the Company and the Significant Subsidiaries have made all disclosures of their then-current Policies to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Parent, been inaccurate or in violation of any applicable laws and regulatory rules or requirements.
(ll) Submission to Jurisdiction. The Company and each of the Guarantors have the power to submit, and pursuant to Section 15(e) of this Agreement and Section 1.12 of the Indenture have legally, validly, effectively and irrevocably submitted, to the exclusive jurisdiction of the courts specified therein; and have the power to designate, appoint and empower, and pursuant to Section 15(e) of this Agreement and Section 1.12 of the Indenture, have legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement or the Indenture, as applicable, in any court specified therein.
4. Further Agreements of the Company and the Guarantors. The Company and each of the Guarantors, jointly and severally, covenant and agree with each Underwriter that:
(a) Required Filings. The Company and the Guarantors will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the term sheet in the form of Annex B hereto) to the extent required by Rule 433 under the Securities Act; and will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company
15
will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City as soon as available on the business day next succeeding the date of this Agreement, in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter, including to each of the Representatives, (i) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (ii) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then
16
amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company or any Guarantor of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company or any Guarantor of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company and the Guarantors will use their reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
17
(g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for the distribution of the Securities; provided that neither the Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. Parent will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of Parent occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and including the Closing Date, the Company and each of the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any of the Guarantors and having a tenor of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds.”
(k) No Stabilization. None of the Company or any of the Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(l) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(m) Tax Indemnity. The Company and each of the Guarantors, jointly and severally, further agree to indemnify and hold harmless the Underwriters against any documentary, stamp, registration, sales, transaction or similar issuance tax, including any interest and penalties, on the creation, issue and sale of the Securities, and on the execution, delivery, performance and enforcement of the Transaction Documents. The Company and each of the Guarantors agree with each of the Underwriters that all payments made to the Underwriters under the Transaction Documents shall be without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever imposed by any Taxing Jurisdiction, unless the Company or any such Guarantor, as the case may be, is compelled by law to deduct or
18
withhold such taxes, duties or charges. In that event, the Company or such Guarantor, as the case may be, shall pay such additional amounts as may be necessary in order that the net amounts received by each Underwriter after such withholding or deduction will equal the amounts that would have been received if no withholding or deduction has been made, except to the extent that such taxes, duties or charges (a) were imposed due to some connection of an Underwriter with the Taxing Jurisdiction other than the mere entering into of this Agreement or receipt of payments hereunder or (b) would not have been imposed but for the failure of such Underwriter to comply with any reasonable certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the Underwriter if such compliance is required or imposed by law as a precondition to an exemption from, or reduction in, such taxes, duties or other charges.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not used and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company or any Guarantor and not incorporated by reference into the Registration Statement and any press release issued by the Company or any Guarantor) other than (i) a free writing prospectus that, solely as a result of use by such underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use a term sheet or term sheets substantially in the forms attached as Annex B hereto without the consent of the Company or any Guarantor; provided that any Underwriter using such term sheets shall notify the Company and provide a copy of any such term sheet or term sheets to the Company prior to the first use of such term sheet or term sheets.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
(c) It will abide by the offering restrictions as set forth on Schedule II hereto.
19
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company and each of the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company, the Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock of or guaranteed by Parent or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission in Section 3(a)(62) of the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review for possible downgrade to its rating of the Securities or of any other debt securities or preferred stock of or guaranteed by Parent or any of its subsidiaries.
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of Parent who has specific knowledge of Parent’s financial matters and is satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(b) or 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company and each of the Guarantors in this Agreement are true and correct and that the Company and each of the Guarantors has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) confirming the matters set forth in paragraphs (a), (c) and (d) above.
20
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of Parent, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Opinions and 10b-5 Statement of Counsel for the Company and the Guarantors. (i) Wilmer Cutler Pickering Hale and Dorr LLP, counsel for the Company and the Guarantors, shall have furnished to the Representatives, at the request of the Company, their written opinion and 10b-5 Statement and (ii) Thomas L. Osteraas, in-house counsel for the Company and the Guarantors, (iii) A&L Goodbody, special Irish counsel for Parent and (iv) DLA Piper Luxembourg S.à r.l., special Luxembourg counsel for the Company, shall each have furnished to the Representatives, at the request of the Company, their written opinion, dated the Closing Date and addressed to the Underwriters, each in form and substance reasonably satisfactory to the Representatives.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date a written opinion and 10b-5 Statement of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the Guarantees.
(j) Good Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and the Guarantors, in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
21
(k) Clearance and Settlement. The Securities shall be eligible for clearance and settlement through the facilities of DTC.
(l) Supplemental Indenture. The Company shall have executed and delivered the Supplemental Indenture and the Underwriters shall have received executed copies thereof.
(m) Additional Documents. On or prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company and each of the Guarantors, jointly and severally, agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
22
(b) Indemnification of the Company and the Guarantors. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantors, each of their respective directors, officers who signed the Registration Statement and each person, if any, who controls the Company or any of the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following: the second, third and fourth sentences of the third paragraph in the text under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus concerning the terms of the offering, including the concession and reallowance to certain dealers, by the Underwriters and the seventh and eighth paragraphs, and only with respect to the underwriters, of text under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus relating to over-allotment and stabilization by the Underwriters (such information collectively the “Underwriter Information”).
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraphs (a) or (b) of this Section 7. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and
23
the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company, the Guarantors, each of their respective directors, officers who signed the Registration Statement and any control persons of the Company and the Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person 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 Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
24
The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company and the Guarantors on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or any Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the Nasdaq Stock Market; (ii) trading of any securities issued or guaranteed by the Company or any
25
of the Guarantors shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any calamity or crisis, involving the United States, Ireland or Luxembourg, or any change in the United States or international financial markets, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule I hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
26
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company or the Guarantors, except that the Company and the Guarantors will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company, the Guarantors or any non-defaulting Underwriter for damages caused by its default.
(e) Notwithstanding the foregoing, for purposes of this Section 10, each series of Securities issued pursuant to the Indenture shall be treated as a separate series, and this Section 10 shall apply to each series as if this Underwriting Agreement applied solely to such series.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors, jointly and severally, agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s and the Guarantors’ counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the reasonable related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties and all fees and expenses incurred by the Company or the Guarantors in connection with the approval of the Securities for “book-entry” transfer by DTC); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, Inc.; and (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors. Except as provided in this Section 11 and in Section 7, the Underwriters shall be responsible for paying their own expenses, including the fees and disbursements of their counsel.
27
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company and each of the Guarantors, jointly and severally, agree to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the Guarantors and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Guarantors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantors or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act, as applied at the end of the Company’s most recently completed fiscal quarter.
15. Miscellaneous. (a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Guarantors, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
28
(c) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Facsimile: (646) 834-8133), J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (Facsimile: (212) 834-6081), Attention: Investment Grade Syndicate Desk and Mizuho Securities USA LLC, 1271 Avenue of the Americas, New York, New York 10020 (Facsimile: (212) 205-7812), Attention: Debt Capital Markets.
Notices to the Company and the Guarantors shall be given to Medtronic, Inc. at 710 Medtronic Parkway NE LC400, Minneapolis, Minnesota 55432-5604, Attention: Thomas L. Osteraas, Esq., Principal Legal Counsel, Corporate & Securities.
(d) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(e) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall 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 of the Company, the Guarantors and the other parties hereto irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding, as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Each of the Company and the Guarantors irrevocably appoints Corporation Service Company, with offices at 80 State Street, Albany, New York 12207-2543, United States, as its agent for service of process or other legal summons for purposes of any Related Proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth in paragraph (c) above shall be effective service of process for any Related Proceeding brought in any Specified Court. The Company, the Guarantors and the other parties hereto irrevocably and unconditionally waive any objection to the laying of venue of any Specified Proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees 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.
(f) Waiver of Immunity. To the extent that the Company or any Guarantor has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court of (i) Luxembourg or Ireland or any political subdivision thereof, (ii) the United States, the State of Minnesota or the State of New York, (iii) any jurisdiction in which they own or lease property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set- off or otherwise) with respect to themselves or their respective property and assets or this Agreement, the Company and each Guarantor hereby irrevocably waive such immunity in respect of their obligations under this Agreement to the fullest extent permitted by applicable law.
29
(g) 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 United States dollars, the parties to this Agreement agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the purchasers could purchase United States dollars with such other currency in New York City on the business day preceding that on which final judgment is given. The obligation of the Company and the Guarantors with respect to any sum due from it to any Underwriter or controlling person of such Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person of such Underwriter of any sum in such other currency, and only to the extent that such Underwriter or controlling person of such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, the Company and the Guarantors, jointly and severally, agree, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person of such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, such Underwriter or controlling person of such Underwriter agrees to pay to the Company or a Guarantor, as applicable, an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person of such Underwriter hereunder.
(h) Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
(i) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
(j) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
30
(k) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(l) Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 15(l), “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); “Covered Entity” means any of the following (A) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (B) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (C) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and “U.S. Special Resolution Regime” means each of (x) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (y) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature Pages Follow]
31
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
| Very truly yours, | ||
| MEDTRONIC GLOBAL HOLDINGS S.C.A., a Luxembourg corporate partnership limited by shares (société en commandite par actions) represented by Medtronic Global Holdings GP S.à r.l. its general partner, in turn acting by | ||
| By | /s/ Erik De Gres | |
| Name: Erik De Gres | ||
| Title: Managing Director and authorized signatory | ||
| MEDTRONIC PUBLIC LIMITED COMPANY | ||
| By | /s/ Jason Bristow | |
| Name: Jason Bristow | ||
| Title: Senior Vice President & Treasurer | ||
| MEDTRONIC, INC. | ||
| By | /s/ Jason Bristow | |
| Name: Jason Bristow | ||
| Title: Senior Vice President & Treasurer | ||
[Signature Page to Medtronic Global Holdings Underwriting Agreement]
Accepted: March 23, 2023
Barclays Capital Inc.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
[Signature Page to Medtronic Global Holdings Underwriting Agreement]
| BARCLAYS CAPITAL INC. | ||
| By: | /s/ James Gutow | |
| Name: | James Gutow | |
| Title: | Managing Director | |
[Signature Page to Medtronic Global Holdings Underwriting Agreement]
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Robert Bottamedi | |
| Name: | Robert Bottamedi | |
| Title: | Executive Director | |
[Signature Page to Medtronic Global Holdings Underwriting Agreement]
| MIZUHO SECURITIES USA LLC | ||
| By: | /s/ Joseph Santaniello | |
| Name: | Joseph Santaniello | |
| Title: | Director | |
[Signature Page to Medtronic Global Holdings Underwriting Agreement]
Schedule I
| Underwriters |
Aggregate Principal Amount of Securities to be Purchased |
|||||||
| 2028 Notes | 2033 Notes | |||||||
| Barclays Capital Inc. |
$ | 266,670,000 | $ | 266,670,000 | ||||
| J.P. Morgan Securities LLC |
$ | 266,670,000 | $ | 266,670,000 | ||||
| Mizuho Securities USA LLC |
$ | 266,660,000 | $ | 266,660,000 | ||||
| BofA Securities, Inc. |
$ | 40,000,000 | $ | 40,000,000 | ||||
| Citigroup Global Markets Inc. |
$ | 40,000,000 | $ | 40,000,000 | ||||
| Goldman Sachs & Co. LLC |
$ | 40,000,000 | $ | 40,000,000 | ||||
| Academy Securities, Inc. |
$ | 20,000,000 | $ | 20,000,000 | ||||
| Guzman & Company |
$ | 20,000,000 | $ | 20,000,000 | ||||
| Loop Capital Markets LLC |
$ | 20,000,000 | $ | 20,000,000 | ||||
| R. Seelaus & Co., LLC |
$ | 20,000,000 | $ | 20,000,000 | ||||
| Total |
$ | 1,000,000,000 | $ | 1,000,000,000 | ||||
|
|
|
|
|
|||||
I-1
Schedule II
Offering Restrictions
European Economic Area
The Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the European Economic Area (“EEA”). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (the “Prospectus Regulation”). Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the EEA has been prepared and therefore offering or selling the Notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
United Kingdom
The Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the United Kingdom (“U.K.”). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); (ii) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (“FSMA”) and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA. Consequently no key information document required by Regulation (EU) No 1286/2014 as it forms part of domestic law by virtue of the EUWA (the “U.K. PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the U.K. has been prepared and therefore offering or selling the Notes or otherwise making them available to any retail investor in the U.K. may be unlawful under the U.K. PRIIPs Regulation.
II-1
Canada
The Notes may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Notes must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if the prospectus supplement (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (“NI 33-105”), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
Hong Kong
The Notes may not be offered or sold by means of any document other than: (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the document being a “prospectus” within the meaning of the Companies Ordinance (Cap. 32, Laws of Hong Kong), and no advertisement, invitation or document relating to the Notes may be issued or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with respect to Notes which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made thereunder.
Japan
The Notes have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended) (the Financial Instruments and Exchange Law) and each underwriter has agreed that it will not offer or sell any Notes, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to
II-2
others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.
Singapore
The prospectus supplement and the accompanying prospectus have not been registered as a prospectus under the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”) with the Monetary Authority of Singapore. Accordingly, the prospectus supplement, the accompanying prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of any Notes may not be circulated or distributed, nor may any Notes be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor (as defined in Section 4A of the SFA (an “Institutional Investor”) under Section 274 of the SFA, (ii) to an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”) or other relevant person (as defined in Section 275(2) of the SFA) (a “Relevant Person”), or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA and (where applicable) Regulation 3 of the Securities and Futures (Classes of Investors) Regulations 2018, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where any Notes are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
| • | a corporation (which is not an Accredited Investor) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or |
| • | a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary is an Accredited Investor, |
then securities or securities-based derivatives contracts (each term as defined in Section 2(1) of the SFA) of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for six months after that corporation or that trust has acquired the Notes under Section 275 of the SFA, except:
| • | to an Institutional Investor under Section 274 of the SFA or to a Relevant Person, or to any person pursuant to Section 275(1A) (in the case of that corporation) or Section 276(4)(i)(B) (in the case of that trust), and in accordance with the conditions, specified in Section 275 of the SFA; |
II-3
| • | where no consideration is or will be given for the transfer; or |
| • | where the transfer is by operation of law. |
Notice to Prospective Investors in Ireland
Any issuance or placement of the Notes must be in conformity with:
| (a) | the provisions of the European Communities (Markets in Financial Instruments) Regulations 2007 (Nos. 1 to 3) (as amended, the “MiFID Regulations”) including, without limitation, Regulations 7 (Authorisation) and 152 (Restrictions on advertising) thereof, any codes of conduct made under the MiFID Regulations, and the provisions of the Investor Compensation Act 1998 (as amended); |
| (b) | the provisions of the Irish Companies Act, the Central Bank Acts 1942—2019 (as amended) and any codes of practice made under Section 117(1) of the Central Bank Act 1989 (as amended); and |
| (c) | the Market Abuse Regulation (EU 596/2014) (as amended) and any rules and guidance issued by the Central Bank of Ireland under Section 1370 of the Irish Companies Act (as amended). |
II-4
Annex A
Time of Sale Information
| 1. | Preliminary Prospectus Supplement dated March 23, 2023 |
| 2. | Pricing Term Sheet dated March 23, 2023 in the form set forth on Annex B |
A-1
Annex B
Medtronic Global Holdings S.C.A.
Pricing Term Sheet
March 23, 2023
| Issuer: | Medtronic Global Holdings S.C.A. | |||||
| Guarantors: | Medtronic plc and Medtronic, Inc. | |||||
| Trade Date: | March 23, 2023 | |||||
| Settlement Date*: | T+5; March 30, 2023 | |||||
| Denominations: | $2,000 x $1,000 | |||||
| Expected Ratings (Moody’s/S&P) **: | A3 (Stable) / A (Stable) | |||||
| Joint Bookrunners: | Barclays Capital Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC | |||||
| Senior Co-Managers: | BofA Securities, Inc., Citigroup Global Markets Inc. and Goldman Sachs & Co. LLC | |||||
| Co-Managers: | Academy Securities, Inc., Guzman & Company, Loop Capital Markets LLC and R. Seelaus & Co., LLC | |||||
| Principal Amount: | $1,000,000,000 | $1,000,000,000 | ||||
| Title: | 4.250% Senior Notes due 2028 | 4.500% Senior Notes due 2033 | ||||
| Security Type/Format: | Senior Notes/SEC Registered | Senior Notes/SEC Registered | ||||
| Maturity Date: | March 30, 2028 | March 30, 2033 | ||||
| Coupon: | 4.250% | 4.500% | ||||
| Price to Public: | 99.693% | 99.380% | ||||
| Yield to Maturity: | 4.319% | 4.578% | ||||
| Spread to Benchmark Treasury: | 87.5 bps | 115 bps | ||||
| Benchmark Treasury: | UST 4.000% due February 29, 2028 | UST 3.500% due February 15, 2033 | ||||
| Benchmark Treasury Price and Yield: | 102-16 / 3.444% | 100-19 / 3.428% | ||||
| Interest Payment Dates: | Semi-annually on March 30 and September 30 of each year, beginning on September 30, 2023 | Semi-annually on March 30 and September 30 of each year, beginning on September 30, 2023 | ||||
| Day Count Convention: | 30/360 | 30/360 | ||||
| Optional Redemption: | The issuer may redeem the 2028 Notes in whole or in part, at any time prior to February 29, 2028 (one month prior to their maturity date) at a redemption price equal to the greater of:
(i) 100% of the principal amount of the 2028 Notes being redeemed; and |
The issuer may redeem the 2033 Notes in whole or in part, at any time prior to December 30, 2032 (three months prior to their maturity date) at a redemption price equal to the greater of:
(i) 100% of the principal amount of the 2033 Notes being redeemed; and |
||||
B-1
| (ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 2028 Notes to be redeemed (excluding any portion of such payments of interest accrued and paid as of the date of redemption and assuming that the 2028 Notes matured on March 30, 2028), discounted to the redemption date on a semi-annual basis at the adjusted treasury rate, as described in the preliminary prospectus supplement, plus 15 basis points, plus, in each case, accrued and unpaid interest to, but not including, the date of redemption.
In addition, at any time on or after February 29, 2028 (one month prior to their maturity date), the issuer may at its option redeem the 2028 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the 2028 Notes being redeemed, plus accrued and unpaid interest, if any, to, but not including, the date of redemption. |
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the 2033 Notes to be redeemed (excluding any portion of such payments of interest accrued and paid as of the date of redemption and assuming that the 2033 Notes matured on March 30, 2033), discounted to the redemption date on a semi-annual basis at the adjusted treasury rate, as described in the preliminary prospectus supplement, plus 20 basis points, plus, in each case, accrued and unpaid interest to, but not including, the date of redemption.
In addition, at any time on or after December 30, 2032 (three months prior to their maturity date), the issuer may at its option redeem the 2033 Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the 2033 Notes being redeemed, plus accrued and unpaid interest, if any, to, but not including, the date of redemption. |
|||||
| CUSIP/ISIN: | 58507L BB4 / US58507LBB45 | 58507l BB4 / US58507LBC28 | ||||
B-2
| * | We expect to deliver the Notes against payment for the Notes on March 30, 2023, the fifth business day following the date of this pricing term sheet (“T+5”). Under Rule 15c6-1 of the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers who wish to trade Notes prior to the second business day preceding the settlement date will be required, by virtue of the fact that the Notes initially settle in T+5, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. |
| ** | An explanation of the significance of ratings may be obtained from the ratings agencies. Generally, ratings agencies base their ratings on such material and information, and such of their own investigations, studies and assumptions, as they deem appropriate. The security ratings above are not a recommendation to buy, sell or hold the securities offered hereby. The ratings may be subject to review, revision, suspension, reduction or withdrawal at any time by the rating agencies. Each of the security ratings above should be evaluated independently of any other security rating. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer and the guarantors have filed with the SEC for more complete information about the issuer and the guarantors and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any guarantor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting Barclays Capital Inc. at 1-888-603-5847, J.P. Morgan Securities LLC at 1-212-834-4533 (collect) and Mizuho Securities USA LLC at 1-866-271-7403.
This pricing term sheet supplements the preliminary form of prospectus supplement filed by Medtronic Global Holdings S.C.A. on March 23, 2023 relating to its prospectus dated March 3, 2023.
Any disclaimer or other notice that may appear below is not applicable to this communication and should be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.
B-3
Exhibit 4.2
MEDTRONIC GLOBAL HOLDINGS S.C.A.
as Issuer,
MEDTRONIC PUBLIC LIMITED COMPANY
and MEDTRONIC, INC.
as Guarantors,
COMPUTERSHARE TRUST COMPANY, N.A. as successor to
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 30, 2023
TO INDENTURE
DATED AS OF MARCH 28, 2017
Relating to
$1,000,000,000 4.250% Senior Notes due 2028
$1,000,000,000 4.500% Senior Notes due 2033
SEVENTH SUPPLEMENTAL INDENTURE
SEVENTH SUPPLEMENTAL INDENTURE, dated as of March 30, 2023 (the “Supplemental Indenture”), to the Base Indenture (defined below) among MEDTRONIC GLOBAL HOLDINGS S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at Espace Monterey, 40, Avenue Monterey, Ground Floor, L-2163 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B191129 (the “Company”), MEDTRONIC PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland (“Parent”), MEDTRONIC, INC., a Minnesota corporation (“Medtronic, Inc.” and, together with Parent, the “Guarantors”) and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, a national banking association duly organized under the laws of the United States, as Trustee (herein called the “Trustee”).
RECITALS
WHEREAS, the Company and the Guarantors executed and delivered to the Trustee the Indenture, dated as of March 28, 2017 (the “Base Indenture” and, together with this Supplemental Indenture, the “Indenture”), providing for the issuance from time to time of the Company’s Securities;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of two new series of its Securities to be known as its 4.250% Senior Notes due 2028 (the “2028 Notes”) and 4.500% Senior Notes due 2033 (the “2033 Notes” and, together with the 2028 Notes, the “Notes”), to be fully and unconditionally guaranteed by the Guarantors (the “Guarantees”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make this Supplemental Indenture a valid instrument in accordance with its terms, to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid and legally binding obligations of the Company, to make the Guarantees, when executed by the Guarantors, the valid and legally binding obligations of the Guarantors, and all acts and things necessary have been done and performed to make this Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this Supplemental Indenture have been duly authorized in all respects.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the premises contained herein, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture.
Section 1.02. References in this Supplemental Indenture to article and section numbers shall be deemed to be references to article and section numbers of this Supplemental Indenture unless otherwise specified.
Section 1.03. For purposes of this Supplemental Indenture, the following terms have the meanings ascribed to them as follows:
“2028 Notes” has the meaning provided in the recitals.
“2033 Notes” has the meaning provided in the recitals.
“Base Indenture” has the meaning provided in the recitals.
“Company” has the meaning provided in the preamble.
“Guarantor” has the meaning provided in the preamble.
“Indenture” has the meaning provided in the recitals.
“Interest Payment Date” has the meaning provided in Section 2.04.
“Medtronic, Inc.” has the meaning provided in the preamble.
“Notes” has the meaning provided in the recitals.
“Parent” has the meaning provided in the preamble.
“Paying Agent” has the meaning provided in Section 2.03(d).
“Supplemental Indenture” has the meaning provided in the preamble.
“Trustee” has the meaning provided in the preamble.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.01. Designation and Principal Amount. The 2028 Notes and the 2033 Notes are hereby authorized, each unlimited in aggregate principal amount. The 2028 Notes and the 2033 Notes issued on the date hereof pursuant to the terms of this Indenture shall be in an aggregate principal amount of $1,000,000,000 and $1,000,000,000, respectively, which amounts shall be set forth in the written order of the Company for the authentication and delivery of the Notes pursuant to Section 3.03 of the
3
Base Indenture. In addition, the Company may, from time to time, without notice to or the consent of the Holders of the Notes, create and issue additional Notes of any series ranking equally and ratably with the Notes of such series issued on the date hereof in all respects (or in all respects except for the payment of interest accruing prior to the issue date of such additional Notes or except for the first payment of interest following the issue date of such additional Notes), so that such additional Notes shall be consolidated and form a single series with such series of Notes issued on the date hereof and shall have the same terms as to status, redemption or otherwise as such series of Notes issued on the date hereof; provided, that if any such additional Notes are not fungible with the Notes of such series initially issued hereunder for U.S. federal income tax purposes, such additional Notes shall have a separate CUSIP/ISIN number.
Section 2.02. Maturity. The principal amount of the 2028 Notes shall be payable on March 30, 2028 and the principal amount of the 2033 Notes shall be payable on March 30, 2033.
Section 2.03. Form and Payment. (a) The Notes shall be issued as global notes, only in fully registered book-entry form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) Payments of principal, premium, if any, and/or interest, if any, on the global notes representing the Notes shall be made to the Paying Agent (defined below) which in turn shall make payment to the Depositary with respect to the Notes of such series or its nominee.
(c) The global notes representing the Notes shall be deposited with, or on behalf of, the Depositary, and shall be registered, at the request of the Depositary, in the name of Cede & Co.
(d) The Company initially appoints Computershare Trust Company, N.A. as Security Registrar with respect to the Notes pursuant to Section 3.05 of the Base Indenture until such time as the Security Registrar has resigned or a successor has been appointed. Computershare Trust Company, N.A. shall initially act as paying agent (the “Paying Agent”) for the Notes. The Company may appoint and change the Paying Agent without prior notice to the Holders.
Section 2.04. Interest. (a) Interest on the 2028 Notes shall accrue at the rate of 4.250% per annum. Interest on the 2028 Notes shall be payable semiannually in arrears on March 30 and September 30, commencing on September 30, 2023 (each a “2028 Note Interest Payment Date”), to the Holders in whose names the 2028 Notes are registered at the close of business on the March 15 and September 15 immediately preceding such 2028 Note Interest Payment Date. Interest on the 2028 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. If any 2028 Note Interest Payment Date is not a Business Day, then the related payment of interest for such 2028 Note Interest Payment Date shall be paid on the next succeeding Business Day with the same force and effect as if made on such 2028 Note Interest Payment Date and no further interest shall accrue as a result of such delay.
4
(b) Interest on the 2033 Notes shall accrue at the rate of 4.500% per annum. Interest on the 2033 Notes shall be payable semiannually in arrears on March 30 and September 30, commencing on September 30, 2023 (each a “2033 Note Interest Payment Date”), to the Holders in whose names the 2033 Notes are registered at the close of business on the March 15 and September 15 immediately preceding such 2033 Note Interest Payment Date. Interest on the 2033 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. If any 2033 Note Interest Payment Date is not a Business Day, then the related payment of interest for such 2033 Note Interest Payment Date shall be paid on the next succeeding Business Day with the same force and effect as if made on such 2033 Note Interest Payment Date and no further interest shall accrue as a result of such delay.
Section 2.05. Other Terms. The Notes shall be unsecured senior indebtedness of the Company and shall rank equally and ratably in right of payment with all of the Company’s other unsecured and unsubordinated indebtedness outstanding from time to time. The Notes shall not be convertible into, or exchangeable for, any other securities of the Company, except that the Notes shall be exchangeable for other Notes to the extent provided for in the Base Indenture.
ARTICLE 3
REDEMPTION OF THE NOTES
Section 3.01. Optional Redemption. (a) The Company may redeem any series of the 2028 Notes and 2033 Notes, at any time prior to the applicable Par Call Date, at a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed, and
(ii) the sum of the present values of the Remaining Scheduled Payments of the Notes to be redeemed, discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 15 basis points in the case of the 2028 notes, and 20 basis points in the case of the 2033 notes;
plus, in each case, accrued and unpaid interest thereon, if any, to, but excluding, the Redemption Date.
(b) At any time on or after the applicable Par Call Date, the Company may redeem any series of the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest thereon, if any, to, but not including, the applicable Redemption Date.
(c) Notwithstanding anything to the contrary in the Base Indenture, in the case of any redemption at the election of the Company, the Company shall, at least 10 days prior to the date on which the Company mails the notice of redemption to each holder (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of the applicable Redemption Date, of the principal amount of Notes of such series to be redeemed and, if applicable, of the tenor of the Notes to be redeemed.
5
(d) Notice of redemption shall be delivered not less than 10 nor more than 60 days prior to the applicable Redemption Date, to each Holder of Notes to be redeemed, at such Holder’s address appearing in the Security Register and (ii) an Officers’ Certificate specifying the actual Redemption Price shall be sent to the Trustee no later than two Business Days prior to the Redemption Date. A notice of redemption may, at the discretion of the Company, be subject to one or more conditions precedent, including, but not limited to, completion of an equity offering, a financing, or other corporate transaction, provided that if such redemption or notice is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the Redemption Date may be postponed until up to 60 days following the notice of redemption, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date (including as it may be postponed).
(e) Notes may be redeemed in part in the minimum authorized denomination or in any integral multiple of such amount.
(f) For purposes of this Section 3.01, the following definitions are applicable:
“Par Call Date” means February 29, 2028 for the 2028 Notes and December 30, 2032 for the 2023 Notes.
“Remaining Scheduled Payments” means, with respect to each note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date but for such redemption (assuming that the Notes to be redeemed matured on the applicable Par Call Date); provided, however, that, if such Redemption Date is not an Interest Payment Date with respect to such note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the applicable Par Call Date (the
6
“Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third business day preceding the Redemption Date H.15 is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the applicable Par Call Date, as applicable. If there is no United States Treasury security maturing on the applicable Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the applicable Par Call Date, one with a maturity date preceding the applicable Par Call Date and one with a maturity date following the applicable Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the applicable Par Call Date. If there are two or more United States Treasury securities maturing on the applicable Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
Section 3.02. Article 15 of the Base Indenture shall apply to each series of Notes; provided that the first sentence of Section 15.01 shall be amended by inserting “Ireland” immediately after “Luxembourg,” therein.
7
ARTICLE 4
MISCELLANEOUS
Section 4.01. Covenant Defeasance. Article 13 of the Base Indenture shall be applicable to the Notes.
Section 4.02. Form of Notes. (a) The Notes and the Trustee’s certificates of authentication to be endorsed thereon are to be substantially in the forms of Exhibits A and B attached hereto, which forms are hereby incorporated in and made a part of this Supplemental Indenture.
(b) The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Supplemental Indenture, and the Company, the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 4.03. Ratification of Base Indenture. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 4.04. Trust Indenture Act Controls. If any provision hereof limits, qualifies or conflicts with the duties imposed by Section 310 through Section 317 of the Trust Indenture Act of 1939, the imposed duties shall control.
Section 4.05. Conflict with Indenture. To the extent not expressly amended or modified by this Supplemental Indenture, the Base Indenture shall remain in full force and effect. If any provision of this Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture, the provision of this Supplemental Indenture shall control.
Section 4.06. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW. FOR THE AVOIDANCE OF DOUBT, THE APPLICABILITY OF ARTICLES 470-3 TO 470-19 OF THE LUXEMBOURG LAW ON COMMERCIAL COMPANIES DATED AUGUST 10, 1915 ON COMMERCIAL COMPANIES, AS AMENDED, SHALL BE EXCLUDED.
Section 4.07. Service of Process. The Company and each Guarantor appoints Corporation Service Company, with offices at 80 State Street, Albany, New York 12207-2543, United States, as its agent to receive service of process or other legal summons for purposes of any suit, action or proceeding based on or arising out of or relating to this Supplemental Indenture or any Notes or Guarantees.
Section 4.08. Successors. All agreements of the Company and the Guarantor in the Base Indenture, this Supplemental Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in the Base Indenture and this Supplemental Indenture shall bind its successors.
8
Section 4.09. Counterparts. This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
Section 4.10. Trustee Disclaimer. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture other than as to the validity of its execution and delivery by the Trustee. The recitals and statements herein are deemed to be those of the Company and the Guarantors and not the Trustee.
9
IN WITNESS WHEREOF, the parties hereto have caused the Supplemental Indenture to be duly executed as of the day and year first above written.
| MEDTRONIC GLOBAL HOLDINGS S.C.A., a Luxembourg corporate partnership limited by shares (société en commandite par actions) represented by Medtronic Global Holdings GP S.à.r.l. its General Partner, in turn acting by | ||
| By: | /s/ Erik De Gres | |
| Name: Erik De Gres | ||
| Title: Managing Director and authorized signatory | ||
| Attest: |
| By: | /s/ Salvador Sens | |
| Name: Salvador Sens | ||
| Title: Managing Director and authorized signatory of Medtronic Global Holdings S.C.A. |
[Signature Page to Medtronic Global Holdings S.C.A. Seventh Supplemental Indenture]
| MEDTRONIC PUBLIC LIMITED COMPANY | ||
| By: |
/s/ Jason Bristow | |
| Name: Jason Bristow | ||
| Title: Senior Vice President & Treasurer | ||
[Signature Page to Medtronic Global Holdings S.C.A. Seventh Supplemental Indenture]
| MEDTRONIC, INC. | ||
| By: |
/s/ Jason Bristow | |
| Name: Jason Bristow Title: Senior Vice President & Treasurer | ||
[Signature Page to Medtronic Global Holdings S.C.A. Seventh Supplemental Indenture]
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee | ||
| By: |
/s/ Eric Schlemmer | |
| Name: Eric Schlemmer | ||
| Title: Vice President | ||
[Signature Page to Medtronic Global Holdings S.C.A. Seventh Supplemental Indenture]
EXHIBIT A
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
MEDTRONIC GLOBAL HOLDINGS S.C.A.
4.250% Senior Note Due 2028
| CUSIP No.: 58507LBB4 | ||
| No. |
ISIN No.: US58507LBB45 | |
| $ |
Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and existing under the laws of the Grand Duchy of Luxembourg (herein called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of Dollars on March 30, 2028 and to pay interest thereon from March 30, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on March 30 and September 30 in each year, commencing September 30, 2023, at the rate of 4.250% per annum computed on the basis of a 360-day year comprised of twelve 30-day months, until the principal hereof is paid or made available for payment. The Company shall pay interest on overdue principal, and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful, from time to time on demand at the rate borne by this Security.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Trustee maintained for that purpose in St. Paul, Minnesota, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
| MEDTRONIC GLOBAL HOLDINGS S.C.A., a Luxembourg corporate partnership limited by shares (société en commandite par actions) represented by Medtronic Global Holdings GP S.à.r.l. its General Partner, in turn acting by | ||
| By: | ||
| Name: | ||
| Title: | ||
Attest:
NOTATION OF GUARANTEE
For value received, the undersigned (the “Guarantor”), to the extent set forth in and subject to the terms of the Indenture, dated as of March 28, 2017 (the “Base Indenture”), among Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and existing under the laws of the Grand Duchy of Luxembourg (the “Company”), Medtronic Public Limited Company, a public limited company incorporated under the laws of Ireland (“Medtronic plc”), Medtronic, Inc., a Minnesota corporation (“Medtronic, Inc.”), and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture (as defined below)), and as amended and supplemented by the Sixth Supplemental Indenture, dated as of February 22, 2023 (the “Sixth Supplemental Indenture”), among the Company, Medtronic plc, Medtronic, Inc., the Trustee and the Seventh Supplemental Indenture, dated as of March 30, 2023 (the “Seventh Supplemental Indenture” and, together with the Sixth Supplemental Indenture and the Base Indenture, the “Indenture”), among the Company, Medtronic plc, Medtronic, Inc. and the Trustee, hereby fully and unconditionally guarantees, on a joint and several basis, to each Holder and to the Trustee and its successors and assigns, that the principal of and premium, if any, and interest on the 2028 Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the 2028 Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed.
The obligations of each Guarantor to the Holders and to the Trustee pursuant to this Notation of Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture, and reference is hereby made to the Indenture for the precise terms and limitations of this Notation of Guarantee. Each Holder of the 2028 Notes to which this Notation of Guarantee is endorsed, by accepting such 2028 Notes, agrees to and shall be bound by such provisions.
All terms used in this Notation of Guarantee which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, each Guarantor has caused this Notation of Guarantee to be signed by a duly authorized officer.
Dated: , 2023
| MEDTRONIC PUBLIC LIMITED COMPANY | ||
| By |
||
| MEDTRONIC, INC. | ||
| By |
||
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: , 2023
| COMPUTERSHARE TRUST COMPANY, N.A., Trustee | ||
| By: |
||
| Authorized Signatory | ||
EXHIBIT B
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
MEDTRONIC GLOBAL HOLDINGS S.C.A.
4.500% Senior Note Due 2033
| CUSIP No.: 58507LBC2 | ||
| No. |
ISIN No.: US58507LBC28 | |
| $ |
Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and existing under the laws of the Grand Duchy of Luxembourg (herein called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of Dollars on March 30, 2033 and to pay interest thereon from March 30, 2023 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on March 30 and September 30 in each year, commencing September 30, 2023, at the rate of 4.500% per annum computed on the basis of a 360-day year comprised of twelve 30-day months, until the principal hereof is paid or made available for payment. The Company shall pay interest on overdue principal, and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful, from time to time on demand at the rate borne by this Security.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the office or agency of the Trustee maintained for that purpose in St. Paul, Minnesota, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
| MEDTRONIC GLOBAL HOLDINGS S.C.A., a Luxembourg corporate partnership limited by shares (société en commandite par actions) represented by Medtronic Global Holdings GP S.à.r.l. its General Partner, in turn acting by | ||
| By: | ||
| Name: | ||
| Title: | ||
Attest:
NOTATION OF GUARANTEE
For value received, the undersigned (the “Guarantor”), to the extent set forth in and subject to the terms of the Indenture, dated as of March 28, 2017 (the “Base Indenture”), among Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (société en commandite par actions) incorporated and existing under the laws of the Grand Duchy of Luxembourg (the “Company”), Medtronic Public Limited Company, a public limited company incorporated under the laws of Ireland (“Medtronic plc”), Medtronic, Inc., a Minnesota corporation (“Medtronic, Inc.”), and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture (as defined below)), and as amended and supplemented by the Sixth Supplemental Indenture, dated as of February 22, 2023 (the “Sixth Supplemental Indenture”), among the Company, Medtronic plc, Medtronic, Inc., the Trustee and the Seventh Supplemental Indenture, dated as of March 30, 2023 (the “Seventh Supplemental Indenture” and, together with the Sixth Supplemental Indenture and the Base Indenture, the “Indenture”), among the Company, Medtronic plc, Medtronic, Inc. and the Trustee, hereby fully and unconditionally guarantees, on a joint and several basis, to each Holder and to the Trustee and its successors and assigns, that the principal of and premium, if any, and interest on the 2033 Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the 2033 Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed.
The obligations of each Guarantor to the Holders and to the Trustee pursuant to this Notation of Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture, and reference is hereby made to the Indenture for the precise terms and limitations of this Notation of Guarantee. Each Holder of the 2033 Notes to which this Notation of Guarantee is endorsed, by accepting such 2033 Notes, agrees to and shall be bound by such provisions.
All terms used in this Notation of Guarantee which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, each Guarantor has caused this Notation of Guarantee to be signed by a duly authorized officer.
Dated: , 2023
| MEDTRONIC PUBLIC LIMITED COMPANY | ||
| By |
||
| MEDTRONIC, INC. | ||
| By |
||
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated: , 2023
| COMPUTERSHARE TRUST COMPANY, N.A., Trustee | ||
| By: |
||
| Authorized Signatory | ||
27
Exhibit 5.1
+1 202 663 6000 (t)
+1 202 663 6363 (f)
wilmerhale.com
March 30, 2023
Medtronic Global Holdings S.C.A.
40, Avenue Monterey
L- 2163, Luxembourg
Grand Duchy of Luxembourg
Medtronic Global Holdings S.C.A. Senior Notes
Ladies and Gentlemen:
We have acted as special U.S. counsel for Medtronic Global Holdings S.C.A, an entity organized under the laws of Luxembourg (the “Company”) in connection with the offer and sale by the Company of $1,000,000,000 aggregate principal amount of its 4.250% Senior Notes due 2028 (the “2028 Notes”) and $1,000,000,000 aggregate principal amount of its 4.500% Senior Notes due 2033 (the “2033 Notes and together with the 2028 Notes, the “Notes”), pursuant to an underwriting agreement dated as of March 23, 2023, among the Company, the Guarantors (as defined below) and Barclays Capital Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC, as representatives of the several underwriters (the “Underwriting Agreement”). The Notes will be fully and unconditionally guaranteed on an unsecured unsubordinated basis (the “Guarantees”) by Medtronic, Inc., a Minnesota corporation (“Medtronic, Inc.”) and Medtronic Public Limited Company, a company organized under the laws of Ireland (“Medtronic plc,” and together with Medtronic, Inc., the “Guarantors”). The Notes will be issued pursuant to the Indenture dated as of March 28, 2017 (the “Base Indenture”), among the Company, the Guarantors and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended by the Sixth Supplemental Indenture dated as of February 22, 2023 (the “Sixth Supplemental Indenture”), among the Company, the Guarantors and the Trustee, and as supplemented by the Seventh Supplemental Indenture dated as of March 30, 2023 (the “Seventh Supplemental Indenture” and together with the Base Indenture and the Sixth Supplemental Indenture, the “Indenture”) among the Company, the Guarantors and the Trustee.
The Company and the Guarantors have filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-270272) under the Securities Act of 1933, as amended (the “Securities Act”), on March 3, 2023 (the “Registration Statement”), including the prospectus dated as of March 3, 2023 (the “Base Prospectus”), as supplemented by a preliminary prospectus supplement dated as of March 23, 2023 (the “Preliminary Prospectus Supplement”) relating to the Notes, and a prospectus supplement dated as of March 23, 2023 (the “Prospectus Supplement”) relating to the Notes.
Medtronic Global Holdings S.C.A.
March 30, 2023
Page 2
We have examined and relied upon signed copies of the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement, the Prospectus Supplement, the Underwriting Agreement, the Indenture, the Notes and the Guarantees. For purposes of this opinion, we have also examined and relied without investigation upon the accuracy of (i) the opinion letter of A&L Goodbody, Irish counsel for Medtronic plc, dated the date hereof and filed as Exhibit 5.2 to Medtronic plc’s Current Report on Form 8-K to be filed on the date hereof (the “Form 8-K”); (ii) the opinion letter of DLA Piper Luxembourg S.à r.l., special Luxembourg counsel for the Company dated the date hereof and filed as Exhibit 5.3 to the Form 8-K; and (iii) the opinion letter of Thomas L. Osteraas, Legal Director – Corporate and Securities of Medtronic, Inc., dated the date hereof and filed as Exhibit 5.4 to the Form 8-K. We have relied as to certain matters on information obtained from public officials and officers of the Company, Medtronic plc and Medtronic, Inc.
In our examination of the documents referred to above, we have assumed the genuineness of all signatures, the legal capacity of all individual signatories, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, and the authenticity of such original documents. Insofar as the opinions relate to factual matters, we have assumed, without independent investigation, that representations of officers and directors of the Company and the Guarantors and documents furnished to us by the Company and Guarantors are true and correct.
In rendering the opinions set forth below, we have assumed that (i) the Trustee has the power, corporate or other, to enter into and perform its obligations under the Indenture; (ii) the Indenture, the Notes and the Guarantees have been duly authorized, executed and delivered by all parties thereto; and (iii) the Indenture is a valid and binding obligation of the Trustee. We have also assumed that the Board of Directors (or comparable body) of the Company and the Board of Directors (or comparable body) of each Guarantor (or any person acting pursuant to authority properly delegated to such person by the Board of Directors (or comparable body) of the Company or the Board of Directors (or comparable body) of each Guarantor) have not taken any action to rescind or otherwise reduce their prior authorization of the issuance of the Notes.
Our opinions below are qualified to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent conveyance or similar laws relating to or affecting the rights or remedies of creditors generally; (ii) statutory or decisional law concerning recourse by creditors to security in the absence of notice or hearing, (iii) duties and standards imposed on creditors and parties to contracts, including, without limitation, requirements of materiality, good faith, reasonableness and fair dealing; and (iv) general equitable principles. Furthermore, we express no opinion as to the availability of any equitable or specific remedy upon any breach of the Indenture, the Notes, or the Guarantees, or to the successful assertion of any equitable defenses, inasmuch as the availability of such remedies or the success of any equitable defenses may be subject to the discretion of a court. We express no opinion herein as to the laws of any jurisdiction other than the state laws of the State of New York. We have not acted as counsel for the Company with respect to matters of Minnesota law, Irish law, Luxembourg law or other applicable foreign law.
Medtronic Global Holdings S.C.A.
March 30, 2023
Page 3
On the basis of, and subject to, the foregoing, we are of the opinion that (i) when the Notes have been duly executed by the Company and duly authenticated by the Trustee in accordance with the terms of the Indenture, and delivered to the purchasers thereof against payment of the consideration therefor in accordance with the terms of the Underwriting Agreement, the Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms; and (ii) when the Guarantees have been duly executed by each Guarantor in accordance with the terms of the Indenture and the Notes, the Guarantees will constitute valid and binding obligations of each Guarantor, enforceable against each Guarantor in accordance with their terms.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions and is rendered as of the date hereof, and we disclaim any obligation to advise you of any change in any of the foregoing sources of law or subsequent developments in law or changes in facts or circumstances that might affect any matters or opinions set forth herein.
Medtronic Global Holdings S.C.A.
March 30, 2023
Page 4
Very truly yours,
/s/ Wilmer Cutler Pickering Hale and Dorr LLP
WILMER CUTLER PICKERING
HALE AND DORR LLP
Exhibit 5.2
|
A&L Goodbody LLP | Dublin | ||
| The Chrysler Building, Suite 33D | Belfast | |||
| 405 Lexington Avenue | London | |||
| New York NY 10174 | New York | |||
| T: +1 212 582 4499 | San Francisco | |||
| www.algoodbody.com | Palo Alto |
| Date | 30 March 2023 | |
| Our ref | 01431905 | |
| Your ref |
Medtronic plc
20 Lower Hatch Street
Dublin 2
Ireland
Dear Sirs
We have acted as Irish solicitors to Medtronic plc (f/k/a Medtronic Limited) (the Company) in connection with the offer and sale by Medtronic Global Holdings S.C.A. (the Issuer) of $1,000,000,000 aggregate principal amount of 4.250% Senior Notes due 2028 (the 2028 Notes), of $1,000,000,000 aggregate principal amount of 4.500% Senior Notes due 2033 (the 2033 Notes and together with the 2028 Notes, the Notes) pursuant to an underwriting agreement, dated as of 23 March 2023 (the Underwriting Agreement) among the Issuer, the Company and Medtronic, Inc. (Medtronic US) and Barclays Capital Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC as representatives of the several underwriters named in the Underwriting Agreement. The Notes will be issued pursuant to the indenture dated as of 28 March 2017 (the Base Indenture), between the Issuer, the Company, Medtronic US and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (the Trustee), as supplemented by the second supplemental indenture, dated as of 7 March 2019, between the Issuer, the Company, Medtronic US, the Trustee and Elavon Financial Services DAC as the paying agent (the Paying Agent) (the Second Supplemental Indenture), as supplemented by the third supplemental indenture, dated as of 2 July 2019, between the Issuer, the Company, Medtronic US, the Trustee and the Paying Agent (the Third Supplemental Indenture), as supplemented by the fourth supplemental indenture dated as of 29 September 2020 between the Issuer, the Company, Medtronic US, the Trustee and the Paying Agent (the Fourth Supplemental Indenture), as supplemented by the fifth supplemental indenture dated as of 21 September 2022 between the Issuer, the Company, Medtronic US, the Trustee and the Paying Agent (the Fifth Supplemental Indenture), as supplemented by the sixth supplemental indenture dated as of 22 February 2023 between the Issuer, the Company, Medtronic US and the Trustee (the Sixth Supplemental Indenture), and as supplemented by the seventh supplemental indenture dated as of 30 March 2023 between the Issuer, the Company, Medtronic US and the Trustee (the Seventh Supplemental Indenture, and together with the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the Base Indenture, the Indentures). The Company will fully and unconditionally guarantee the Notes pursuant to the terms of the Indentures (the Guarantee) and separately, Medtronic US will also fully and unconditionally guarantee the Notes.
The offer and sale of the Notes is being made pursuant to the registration statement on Form S-3 (the Registration Statement), filed with the Securities and Exchange Commission (the SEC) on 3 March 2023 (File No. 333-270272) by the Company, the Issuer and Medtronic US, which Registration Statement includes a prospectus dated 3 March 2023 (the Base Prospectus), as supplemented by the preliminary prospectus dated 23 March 2023 (the Preliminary Prospectus Supplement) and the prospectus supplement dated as of 23 March 2023 relating to the issuance by the Issuer of the Notes (the Prospectus Supplement).
CE Gill • JG Grennan • PD White • VJ Power • LA Kennedy • SM Doggett • B McDermott • S O’Riordan • M Sherlock • KP Allen • C Rogers • G O’Toole • JN Kelly • N O’SullivanMJ Ward • AC Burke • D Widger • C Christle • S Ó Cróinin • DR Baxter • A McCarthy • JF Whelan • JB Somerville • MF Barr • AM Curran • A Roberts • RM Moore • D Main • J Cahir M Traynor • PM Murray • P Walker • K Furlong • PT Fahy • D Inverarity • M Coghlan • DR Francis • A Casey • B Hosty • M O’Brien • L Mulleady • K Ryan • E Hurley • D Dagostino • R Grey R Lyons • J Sheehy • C Carroll • SE Carson • P Diggin • J Williams • A O’Beirne • J Dallas • SM Lynch • M McElhinney* • C Owens • AD Ion • K O’Connor • JH Milne • T Casey M Doyle • CJ Comerford • R Marron • K O’Shaughnessy • S O’Connor • SE Murphy • D Nangle • A Lawler • C Ó Conluain • N McMahon • HP Brandt • A Sheridan • LM Byrne • N Cole M Devane • D Fitzgerald • G McDonald • N Meehan • R O’Driscoll • B O’Malley • C Bollard • M Daly • D Geraghty* • LC Kennedy • E Mulhern • E O’Keeffe • MJ Ellis • D Griffin D McElroy • C Culleton • B Nic Suibhne • S Quinlivan • J Rattigan • K Mulhern • A Muldowney
Consultants: Professor JCW Wylie • MA Greene • AV Fanagan • PM Law • SW Haughey • PV Maher
Each of the partners of A&L Goodbody set out above practises as an Irish Law Attorney. * Resident in U.S.
| 1 | We have examined PDF executed copies of: |
| 1.1 | each of the Transaction Documents set out in Schedule 1 hereto; |
| 1.2 | the Indentures; |
| 1.3 | corporate certificate (the Corporate Certificate) of the Company dated the date hereof attaching: |
| 1.3.1 | true, complete and up to date copies of the certificate of incorporation, the certificate on change of name and memorandum and articles of association of the Company; |
| 1.3.2 | a copy of the extract of minutes of a meeting of the board of directors of the Company dated 8 December 2022; |
| 1.3.3 | a copy of the extract of minutes of a meeting of the board of directors of the Company dated 3 March 2022; |
| 1.3.4 | a copy extract of the minutes of a meeting of the board of directors of the Company held on 19 June 2020; |
| 1.3.5 | a copy extract of the minutes of a meeting of the board of directors of the Company held on 26 April 2019; |
| 1.3.6 | a copy of the unanimous written resolution of the board of directors of the Company passed on 28 January 2019; |
| 1.3.7 | a copy extract of the minutes of a meeting of the board of directors of the Company held on 6 December 2019, and |
such other documents as we have considered necessary or desirable to examine in order that we may give this opinion.
Terms defined in the Transaction Documents have the same meaning in this opinion letter.
| 2 | For the purpose of giving this opinion we have assumed: |
| 2.1 | the authenticity of all documents submitted to us as originals and the completeness and conformity to the originals of all copies of documents of any kind furnished to us; |
| 2.2 | that the copies produced to us of minutes of meetings and/or of resolutions are true copies and correctly record the proceedings of such meetings and/or the subject-matter which they purport to record and that any meetings referred to in such copies were duly convened and held and that all resolutions set out in such minutes were duly passed and are in full force and effect; |
| 2.3 | the genuineness of the signatures and seals on all original and copy documents which we have examined; |
| 2.4 | that the memorandum and articles of association of the Company attached to the Corporate Certificate are correct and up to date; |
2
| 2.5 | the accuracy and completeness as to factual matters of the representations and warranties of the Company contained in the Transaction Documents and the accuracy of all certificates, including the Corporate Certificate, provided to us by the Company; |
| 2.6 | that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Guarantee as disclosed by the Transaction Documents; |
| 2.7 | without having made any investigation, that the terms of the Transaction Documents are lawful and fully enforceable under the laws of the State of New York and any other applicable laws other than the laws of Ireland; |
| 2.8 | the accuracy and completeness of all information appearing on public records, including information available on the Companies Registrations Office (CRO) website; |
| 2.9 | that the Company has entered into the Transaction Documents in good faith, for its legitimate business purposes, for good consideration, and that it derives commercial benefit from the Transaction Documents commensurate with the risks undertaken by it in the Transaction Documents; |
| 2.10 | the Base Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and the Sixth Supplemental Indenture remain in full force and effect and have not been revoked, rescinded or terminated, or amended or varied save as pursuant to the Transaction Documents; |
| 2.11 | that the Notes issued in connection with the Guarantee will not be sold or offered for sale to any persons resident in Ireland; and |
| 2.12 | that the Company will not, by the entry into the Transaction Documents and the performance of the transactions contemplated thereby, be giving financial assistance for the purposes of Section 82 of the Companies Act. |
| 3 | We express no opinion as to any matters falling to be determined other than under the laws of Ireland and, without reference to provisions of other laws imported by Irish private international law, in Ireland as of the date of this letter. Subject to that qualification and to the other qualifications set out herein, we are of the opinion that: |
| 3.1 | the Company is a company duly incorporated as a public limited liability company under the laws of Ireland and is a separate legal entity, subject to suit in its own name. Based only on searches carried out in the CRO and the Central Office of the High Court on 30 March 2023, the Company is validly existing under the laws of Ireland and no steps have been taken or are being taken to appoint a receiver, examiner or liquidator over it or its assets or to wind it up; |
| 3.2 | the Company has the necessary power and authority, and all necessary corporate and other action required by it have been taken, to enable it to execute, deliver and perform the obligations undertaken by it under the Guarantee and the other Transaction Documents to which it is party, and the implementation by it of the foregoing will not cause: |
| 3.2.1 | any limit on it or on its directors (whether imposed by the documents constituting it or by statute or regulation) to be exceeded; or |
| 3.2.2 | any law or order to be contravened; |
| 3.3 | the Guarantee and the other Transaction Documents to which the Company is a party have been duly executed on its behalf; |
| 3.4 | no authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the Guarantee and the other Transaction Documents are required to be obtained in Ireland; |
3
| 3.5 | it is not necessary or advisable under the laws of Ireland in order to ensure the validity, enforceability or priority of the obligations or rights of any party to the Transaction Documents that any of the Transaction Documents be filed, registered, recorded, or notarised in any public office or elsewhere or that any other instrument relating thereto be signed, delivered, filed, registered or recorded; |
| 3.6 | the Company is not entitled to claim any immunity from suit, execution, attachment or other legal process in Ireland; |
| 3.7 | in any proceedings taken in Ireland for the enforcement of the Transaction Documents, the choice of the laws of the State of New York as the governing law of the Transaction Documents would be upheld by the Irish courts in accordance with the provisions of the Rome/Regulation EC No. 593/2008 on the Law Applicable to Contractual Obligations; |
| 3.8 | the submission on the part of the Company under the Transaction Documents to the jurisdiction of the courts of the State of New York is valid and binding on the Company and will be upheld by the Irish courts; |
| 3.9 | in any proceedings taken in Ireland for the enforcement of a judgment obtained against the Company in the courts of the State of New York (a Foreign Judgment) the Foreign Judgment should be recognised and enforced by the courts of Ireland save that to enforce such a Foreign Judgment in Ireland it would be necessary to obtain an order of the Irish courts. Such order should be granted on proper proof of the Foreign Judgment without any re-trial or examination of the merits of the case subject to the following qualifications: |
| 3.9.1 | that the foreign court had jurisdiction, according to the laws of Ireland; |
| 3.9.2 | that the Foreign Judgment was not obtained by fraud; |
| 3.9.3 | that the Foreign Judgment is not contrary to public policy or natural justice as understood in Irish law; |
| 3.9.4 | that the Foreign Judgment is final and conclusive; |
| 3.9.5 | that the Foreign Judgment is for a definite sum of money; |
| 3.9.6 | that the procedural rules of the court giving the Foreign Judgment have been observed; and |
any such order of the Irish courts may be expressed in a currency other than euro in respect of the amount due and payable by the Company but such order may be issued out of the Central Office of the Irish High Court expressed in euro by reference to the official rate of exchange prevailing on the date of issue of such order. However, in the event of a winding up of the Company, amounts claimed by or against the Company in a currency other than the euro (the Foreign Currency) would, to the extent properly payable in the winding up, be paid if not in the Foreign Currency in the euro equivalent of the amount due in the Foreign Currency converted at the rate of exchange pertaining on the date of the commencement of such winding up.
| 4 | The opinions set forth in this opinion letter are given subject to the following qualifications: |
| 4.1 | an order of specific performance or any other equitable remedy is a discretionary remedy and is not available when damages are considered to be an adequate remedy; |
| 4.2 | this opinion is given subject to general provisions of Irish law relating to insolvency, bankruptcy, liquidation, reorganisation, receivership, moratoria, court scheme of arrangement, administration and examination, and the unfair preference of creditors and other Irish law generally affecting the rights of creditors |
4
| 4.3 | this opinion is subject to the general laws relating to the limitation of actions in Ireland; |
| 4.4 | a determination, description, calculation, opinion or certificate of any person as to any matter provided for in the Transaction Documents might be held by the Irish courts not to be final, conclusive or binding if it could be shown to have an unreasonable, incorrect, or arbitrary basis or not to have been made in good faith; |
| 4.5 | additional interest imposed by any clause of any Transaction Documents might be held to constitute a penalty and the provisions of that clause imposing additional interest would thus be held to be void. The fact that such provisions are held to be void would not in itself prejudice the legality and enforceability of any other provisions of the relevant Transaction Documents but could restrict the amount recoverable by way of interest under such Transaction Documents; |
| 4.6 | claims may be or become subject to defences of set-off or counter-claim; |
| 4.7 | an Irish court has power to stay an action where it is shown that there is some other forum having competent jurisdiction which is more appropriate for the trial of the action, in which the case can be tried more suitably for the interests of all the parties and the ends of justice, and where staying the action is not inconsistent with the provisions of Regulation (EU) No. 1215/2012 (recast) on jurisdiction and the recognition and the enforcement of judgments in civil and commercial matters; |
| 4.8 | the enforceability of severance clauses is at the discretion of the court and may not be enforceable in all circumstances; |
| 4.9 | a waiver of all defences to any proceedings may not be enforceable; |
| 4.10 | provisions in any of the Transaction Documents providing for indemnification resulting from loss suffered on conversion of the amount of a claim made in a foreign currency into euro in a liquidation may not be enforceable; |
| 4.11 | an Irish court may refuse to give effect to undertakings contained in any of the Transaction Documents that the Company will pay legal expenses and costs in respect of any action before the Irish courts; and |
| 4.12 | we express no opinion on any taxation matters or on the contractual terms of the relevant documents other than by reference to the legal character thereof. |
This opinion letter is given on the basis that it will be construed in accordance with, and governed in all respects by, the laws of Ireland which shall apply between us and all persons interested. We hereby consent to the filing of this opinion with the SEC as an exhibit to the Issuer’s Current Report on Form 8-K to be filed on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement and to the reference to our firm contained under the heading “Legal Matters” in the Base Prospectus, Preliminary Prospectus Supplement and Prospectus Supplement included therein. 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 of 1933 as amended, or the rules and regulations of the SEC.
5
This opinion letter speaks only as of the date hereof and we disclaim any obligation to advise you or any other person of changes of law or fact that occur after the date hereof.
Yours faithfully
/s/ A&L Goodbody LLP
A&L Goodbody LLP
6
SCHEDULE 1
THE TRANSACTION DOCUMENTS
| 1 | The Underwriting Agreement; |
| 2 | The notations of guarantee dated as of 30 March 2023 by the Company attached to the Notes; |
| 3 | The Base Indenture; and |
| 4 | The Seventh Supplemental Indenture. |
7
Exhibit 5.3
| DLA Piper Luxembourg 37A, Avenue John F. Kennedy L-1855 Luxembourg | ||||||
| T +352 26 29 04 2052 | ||||||
| F +352 26 29 04 3000 | ||||||
| W www.dlapiper.com |
| Medtronic Global Holdings S.C.A. | Our reference | |||
| 40, avenue Monterey | LM/CN/410009/1 | |||
| L-2163 Luxembourg | ||||
| Grand Duchy of Luxembourg | ||||
| (“Addressee” or “you”) | ||||
| March 30, 2023 | ||||
| By Courier and E-mail | ||||
| Dear Sir, | ||||
| Dear Madam, | ||||
| 1. | ROLE OF DLA PIPER LUXEMBOURG |
| 1.1 | DLA Piper Luxembourg (“DLA Piper Luxembourg”, “we” or “us”) has acted as special legal adviser in the Grand Duchy of Luxembourg (“Luxembourg”) to Medtronic Global Holdings S.C.A., a partnership limited by shares (société en commandite par actions) incorporated under the laws of the Grand Duchy of Luxembourg, with its registered office at 40, avenue Monterey, L-2163 Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg Register of Commerce and Companies (Registre de Commerce et des Sociétés, Luxembourg) (“RCS”) under number B 191129 (“Issuer”). |
| 1.2 | This legal opinion (“Opinion”) is issued in connection with the public offer and sale by the Issuer (“Offering”) of USD 1,000,000,000 aggregate principal amount of 4.250% senior notes due 2028 (“2028 Notes”) and USD 1,000,000,000 aggregate principal amount of 4.500% senior notes due 2033 (“2033 Notes” and together with the 2028 Notes, the “Notes”) pursuant to the Underwriting Agreement, (as defined in 2.1.1). The Notes will be issued pursuant to the Indenture (as defined in 2.1.3). The Notes will be fully and unconditionally guaranteed on an unsecured unsubordinated basis by the Guarantors (as defined in 2.1.1). |
| 1.3 | The Offering is being made pursuant to the Issuer’s Registration Statement (as defined in 2.1.4) that includes the preliminary prospectus supplement dated March 23, 2023 (“Preliminary Prospectus Supplement”) supplementing the base prospectus dated March 3, 2023 (“Base Prospectus”). |
| 1.4 | We have taken instructions solely from, and participated in discussions solely with, the Issuer acting through the General Partner (as defined below) as its general partner on its behalf regarding the provisions contained in the Opinion Documents. |
Continuation 2
| 2. | DOCUMENTS EXAMINED |
| 2.1 | For the purposes of rendering this Opinion, we have examined and relied upon electronically transmitted executed copies of the following documents (together, the “Opinion Documents”): |
| 2.1.1 | a New York law governed underwriting agreement, dated March 23, 2023 and entered into by and among the Issuer as issuer acting through Medtronic Global Holdings GP S.à r.l., a private limited liability Issuer (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 40, avenue Monterey, L-2163 Luxembourg, Grand Duchy of Luxembourg and registered with the RCS under number B 191031, as its general partner (“General Partner”), Medtronic Public Limited Company (“Medtronic PLC”) and Medtronic, Inc. (“Medtronic, Inc.” and together with Medtronic PLC, the “Guarantors”) as guarantors and the underwriters as listed therein (“Underwriting Agreement”); |
| 2.1.2 | a New York law governed base indenture dated March 28, 2017 and entered into by and among the Issuer as issuer acting through the General Partner, the Guarantors as such and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association) as trustee (“Trustee”) (“Base Indenture”), as amended by the sixth supplemental indenture dated as of February 22, 2023 (the (“Sixth Supplemental Indenture”) among the Issuer, the Guarantors and the Trustee, as supplemented from time to time; |
| 2.1.3 | a New York law governed seventh supplemental indenture to the Base Indenture March 30, 2023 and entered into by and among the Issuer as issuer acting through the General Partner, the Guarantors as such, the Trustee (“Seventh Supplemental Indenture” and together with the Base Indenture, the Sixth Supplemental Indenture, the “Indenture”); |
| 2.1.4 | a registration statement on Form S-3 (File No. 333-270272) filed with the United States Securities and Exchange Commission (“SEC”) on March 3, 2023 (“Registration Statement”); |
| 2.1.5 | a New York law governed execution copy of the Notes. |
We have further seen the final prospectus supplement dated March 23, 2023 supplementing the Base Prospectus (“Final Prospectus Supplement”).
Capitalised terms used but not defined in this Opinion shall have the same meaning as in the Opinion Documents.
Continuation 3
| 2.2 | For the purposes of rendering this Opinion, but without opining on those documents, we have also examined an electronically transmitted (executed) copy of the following documents (together, the “Corporate Documents”) with respect to the Issuer and the General Partner: |
| 2.2.1 | the consolidated text of the articles of association (statuts coordonnés) of the Issuer dated November 20, 2019 (“Issuer Articles”); |
| 2.2.2 | the consolidated articles of association (statuts coordonnés) of the General Partner dated October 1, 2015 (“GP Articles” and together with the Issuer Articles, “Articles”); |
| 2.2.3 | the pricing action of the authorized officer of the Issuer acting through the General Partner as its general partner on its behalf dated March 23, 2023 (“Pricing Action”); |
| 2.2.4 | the circular resolutions of the board of managers of the General Partner acting on behalf of the Issuer as its general partner on its behalf dated February 20, 2023 approving, inter alia, the Registration Statement and the circular resolutions of the board of managers of the General Partner acting on behalf of the Issuer as its general partner dated March 7, 2023 approving, inter alia, the Offering and the execution of the other Opinions Documents by the Issuer (together, “GP Resolutions acting on behalf of the Issuer”); |
| 2.2.5 | the circular resolutions of the board of managers of the General Partner dated February 20, 2023 approving, inter alia, the Registration Statement and the circular resolutions of the board of managers of the General Partner dated March 7, 2023 approving, inter alia, the Offering and the execution of the Opinions Documents by the Issuer (together, “GP Resolutions” and together with the GP Resolutions acting on behalf of the Issuer as well as with the Pricing Action, the “Resolutions”); |
| 2.2.6 | an excerpt pertaining to the Issuer delivered by the RCS, dated March 30, 2023 (“Issuer Excerpt”); |
| 2.2.7 | an excerpt pertaining to the GP delivered by the RCS, dated March 30, 2023 (“GP Excerpt” and together with the Issuer Excerpt, the “RCS Excerpts”); |
| 2.2.8 | a certificate of absence of a judicial decision or an administrative dissolution without liquidation from the RCS (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) pertaining to the Issuer, dated March 30, 2023, with respect to the situation of the Issuer as at March 29, 2023 (“Issuer RCS Certificate”); and |
| 2.2.9 | a certificate of absence of a judicial decision or an administrative dissolution without liquidation from the RCS (certificat de non-inscription d’une décision judiciaire ou de dissolution administrative sans liquidation) pertaining to the GP, dated March 30, 2023, with respect to the situation of the GP as at March 29, 2023 (“GP RCS Certificate” and together with the Issuer RCS Certificate, the “RCS Certificates”). |
Continuation 4
The Opinion Documents and the Corporate Documents are collectively referred to as the “Documents”.
| 2.3 | We have not reviewed any document other than the Documents and we have made no other enquiries, save as expressly stated in this Opinion. We have not reviewed any document incorporated by reference, or referred to, in the Documents (unless included as a Document) and therefore our opinions do not extend to such documents. |
| 3. | SCOPE, INTERPRETATION AND CONDITIONS OF THIS OPINION |
| 3.1 | We are solely qualified to assess the meaning of, and to give an opinion on, the terms of the documents which are governed by Luxembourg law. This means that we are not qualified to assess the meaning and consequences of, and to give an opinion on, the terms of any Opinion Documents which are not governed by Luxembourg law. Accordingly, our review of such documents has been limited to the terms as they appear on the face thereof, without reference to the general body of law incorporated therein or made applicable thereto. |
| 3.2 | This Opinion is limited to Luxembourg law in force on the date hereof, and as construed and applied by Luxembourg courts in case law published in major Luxembourg legal journals on the date hereof. We have made no investigation of, and do not express or imply any views or opinions on, the law of any country other than Luxembourg. We do not express nor imply any views or opinions on European Union law as it affects any jurisdiction (save for rules implemented into Luxembourg law or directly applicable in Luxembourg), on any matters of direct or indirect taxation, or matters of accounting, regulatory or transfer pricing, nor do we express or imply any views or opinions as to matters of fact. We undertake no obligation to update this Opinion or to advise of any changes in Luxembourg law, its construction or application. |
| 3.3 | This Opinion is given on the express condition, accepted by each person entitled to rely on it (in accordance with paragraph 7.1), that (i) this Opinion and all rights, obligations, issues of interpretation and liabilities in relation to it are governed by, and shall be construed in accordance with, Luxembourg law, and any actions or claims in relation to it must be brought exclusively before Luxembourg courts, (ii) the liability of DLA Piper Luxembourg in connection with the contents of this Opinion is limited in the aggregate to the maximum cover under the professional indemnity insurance of DLA Piper Luxembourg that is available in connection with this Opinion at the time any payment under the claim is to be made, and (iii) this Opinion is issued by, and signed on behalf of, DLA Piper Luxembourg and individuals or legal entities (other than DLA Piper Luxembourg) that are involved in the services provided by, or on behalf of, DLA Piper Luxembourg cannot be held liable in any manner whatsoever. |
| 3.4 | The opinions given in this Opinion are based on the assumptions, and are subject to the qualifications, set out below. They are strictly limited to the commercial contractual matters stated herein and do not extend to any other matters. |
Continuation 5
| 4. | ASSUMPTIONS |
For the purposes of this Opinion, we have assumed, and not verified the following:
| 4.1 | all signatures, stamps and seals are genuine, all original documents are authentic and all copies submitted to us are complete and conform to the originals; |
| 4.2 | all factual matters and statements relied upon, or assumed, in this Opinion are and were true, complete, accurate and up-to-date on the date of execution of the Documents (and any documents in connection therewith) and on the date of this Opinion; |
| 4.3 | the information contained, and statements made, in the Resolutions, the RCS Excerpts and the RCS Certificates were and are true, correct, accurate and up-to-date on the date of the execution of the Documents, on the date of the Resolutions and on the date of this Opinion, and all decisions and acts, the publication of which is required by applicable laws, have been duly registered within the applicable legal time periods; |
| 4.4 | the Opinion Documents and the Resolutions have been executed by the persons mentioned as signatories therein on behalf of all parties thereto on the date specified therein and all individuals having signed the Opinion Documents and the Resolutions have individual legal capacity (capacité juridique) under all relevant laws and regulations to do so; |
| 4.5 | there were no defects in the creation and registration process of the Issuer and the General Partner by the notary or the RCS; |
| 4.6 | the Issuer and the General Partner have their central administration (administration centrale) and, for the purposes of the European Regulation No. 2015/848 of May 20, 2015 on insolvency proceedings (recast) (“Insolvency Regulation”), the centre of their main interests (centre des intérêts principaux) at the place of its registered office (siège statutaire) (as defined under Luxembourg law) in Luxembourg, and has no establishment (as defined, respectively, in the Insolvency Regulation or Luxembourg law) outside Luxembourg; |
| 4.7 | the Articles are in full force and effect and have not been amended, rescinded, revoked or declared null and void; |
| 4.8 | the Issuer and the General Partner do not carry out any activity in the financial sector on a professional basis (as referred to in the Luxembourg law of April 5, 1993 on the financial sector, as amended) or any activity requiring the granting of a business licence under the Luxembourg law of September 2, 2011 governing the access to the professions of skilled craftsman, trademan, manufacturer, as well as to certain liberal professions; |
| 4.9 | the Resolutions (i) correctly and completely reflect the resolutions made by the board of managers of the General Partner acting on behalf of the Issuer as its general partner on its behalf in respect of the transactions contemplated by the Opinion Documents, (ii) have been approved and adopted validly, and (iii) remain in full force and effect, and have not been amended, rescinded, revoked or declared null and void (including the delegation of powers granted therein); |
Continuation 6
| 4.10 | none of the members of the board of managers of the General Partner acting on behalf of the Issuer as its general partner on its behalf has a (potential) conflict of interest with the Issuer and the General Partner in connection with the Opinion Documents, and the transactions contemplated thereby, that would preclude any of them from validly representing the General Partner, as the case may be; |
| 4.11 | the execution, entry into and performance by the Issuer acting through the General Partner as its general partner on its behalf of the Opinion Documents, and the transactions in connection therewith, (i) are in its corporate interest, (ii) are with the intent of pursuing profit (but lucratif), (iii) serve its corporate object, and (iv) do not constitute a misuse of corporate assets as referred to under Article 1500-11 of the Luxembourg law of August 10, 1915 on commercial companies, as amended (“1915 Law”); |
| 4.12 | the Issuer acting through the General Partner as its general partner on its behalf is not under any contractual obligation to obtain the consent, approval, co-operation, permission or otherwise of any third party or person in connection with the execution of, entry into, or performance of its obligations under, the Opinion Documents; |
| 4.13 | each of the parties to the Opinion Documents, other than the Issuer and the General Partner (“Other Parties” and, together with the Issuer and the General Partner, the “Parties”), is validly existing under the laws by which it is purported to be governed (including, without limitation, the laws of the jurisdiction of its place of incorporation, establishment or constitution, registered office or place of central administration, as the case may be), has all requisite power or capacity (corporate or otherwise, including the qualification or licence to carry on its business in its country of incorporation, establishment or constitution) to execute and deliver, and to perform its obligations under, the Opinion Documents, and the Opinion Documents have been duly executed by, or on behalf of, the Other Parties; |
| 4.14 | no winding up, insolvency or other similar proceedings, regimes or officers relating to, or affecting, the rights of creditors generally has been presented, commenced or appointed in respect of any of the Parties; |
| 4.15 | there is neither a vitiated consent (vice de consentement) by reason of mistake (erreur), fraud (dol), duress (violence) or inadequacy (lésion), nor an illicit cause (cause illicite) in relation to the Opinion Documents; |
| 4.16 | the due compliance by the Parties with all requirements (including, without limitation, the obtaining of the necessary consents, licences, approvals, orders and authorisations, the making of the necessary filings, registrations and notifications and the payment of stamp duties and other taxes) under any laws (other than, but only to the extent expressly opined upon herein, Luxembourg law, in respect of the Issuer and the General Partner only) in connection with the execution, entry into and performance of the Opinion Documents (and any documents in connection therewith); |
Continuation 7
| 4.17 | all acts, conditions or things required to be fulfilled, performed or effected in connection with the execution, entry into and performance of the Opinion Documents under the laws of any jurisdiction (other than, but only to the extent expressly opined upon herein, Luxembourg, in respect of the Issuer and the General Partner only) have been duly fulfilled, performed and effected; |
| 4.18 | the Opinion Documents, and all obligations thereunder are legal, valid, binding upon and enforceable against the Parties as a matter of all relevant laws (other than, but only to the extent expressly opined upon herein, Luxembourg law in respect of the Issuer and the General Partner) and the obligations thereunder have not been discharged; |
| 4.19 | that the choice of New York law as the governing law of the Opinion Documents and the submission to jurisdiction made in the Opinion Documents is valid and enforceable as a matter of all applicable laws (other than Luxembourg law) and that there is no provision of the laws of any jurisdiction (other than Luxembourg) that would have a negative bearing on the foregoing; |
| 4.20 | the appointment by the Issuer acting through the General Partner as its general partner on its behalf of a process agent as its authorized agent upon whom process may be served in any proceedings before the courts of New York State arising out of or in relation to the Opinion Documents constitutes a valid and legally binding appointment under any applicable laws (other than Luxembourg law); |
| 4.21 | insofar as any obligation of the Parties under the Opinion Documents (or any documents in connection therewith) is to be performed in, or is otherwise affected by the laws of, any jurisdiction other than Luxembourg, its performance would not be illegal or ineffective under the laws of that jurisdiction; |
| 4.22 | there are no provisions in the laws of any jurisdiction outside Luxembourg or in the documents mentioned in the Opinion Documents, which would adversely affect, or otherwise have any negative impact on this Opinion; |
| 4.23 | each of the transactions entered into pursuant to, or in connection with, the Opinion Documents and all payments and transfers made by, on behalf of, or in favour of, the Parties are made at arm’s length and in accordance with market practice; |
| 4.24 | each of the Parties entered into and intends to perform its obligations under the Opinion Documents in good faith, for the purpose of carrying out its business and without any intention to defraud or deprive of any legal benefit any other party (including third party creditors) or to circumvent any mandatory law or regulation of any jurisdiction; |
| 4.25 | the absence of any other arrangement or agreement between the Parties, which would modify or supersede the terms of the Opinion Documents; |
| 4.26 | the assumptions above were, are and will be true and correct on the date of execution of the Opinion Documents and of this Opinion. |
Continuation 8
| 5. | OPINIONS |
Based on the assumptions set out above and subject to the qualifications set out below, and subject to any factual matters not disclosed to us in the course of our investigations and without expressing any opinion as to matters or documents other than the Opinion Documents, we are of the following opinion:
| 5.1 | Status – No Record of a Judicial Decision |
The Issuer is a société en commandite par actions (partnership limited by shares) incorporated and existing under Luxembourg law for an unlimited duration.
The General Partner is a société à responsabilité limitée (private limited liability company) incorporated and existing under Luxembourg law for an unlimited duration.
According to, and based solely on, the RCS Certificates, as at March 29, 2023 no judicial decisions in respect of bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) or judicial liquidation (liquidation judiciaire) and no proceedings of administrative dissolution without liquidation (dissolution administrative sans liquidation) pertaining to the Issuer and the General Partner have been recorded with the RCS.
| 5.2 | Corporate Power - Due Authorisation |
The Issuer acting through the General Partner as its general partner on its behalf and the General Partner have the corporate power and capacity to execute and enter into the Opinion Documents, and to perform the obligations thereunder.
The execution by the Issuer acting through the General Partner as its general partner on its behalf of the Opinion Documents and the performance of its obligations thereunder has been duly authorised by all requisite corporate action under the Articles on the part of the Issuer and the General Partner.
| 5.3 | Due Execution |
The Opinion Documents have been duly executed by the Issuer acting through the General Partner as its general partner on its behalf.
| 5.4 | No Conflict |
The execution of the Opinion Documents by the Issuer acting through its General Partner as its general partner on its behalf does not result in any violation of (i) the Articles or (ii) the 1915 Law.
Continuation 9
| 5.5 | Consents |
The execution by the Issuer acting through the General Partner as its general partner on its behalf of the Opinion Documents does not require any authorisation or approval from, action by, notice to or filing with, any government, administration or other state authority or court in Luxembourg.
| 5.6 | No Further Corporate Actions |
No further corporate acts or conditions are required by Luxembourg law to be performed or fulfilled in order to (i) enable the Issuer acting through the General Partner as its general partner on its behalf lawfully to enter into the Opinion Documents and (ii) make the Opinion Documents admissible in evidence in Luxembourg.
| 5.7 | Choice of Law |
The choice of the laws of the State of New York, United States of America as the law governing the contractual obligations contained in the Opinion Documents is valid and binding upon the Issuer acting through the General Partner as its general partner on its behalf under Luxembourg law in accordance with, and subject to, the European Regulation No. 593/2008 of June 17, 2008 on the law applicable to contractual obligations.
| 5.8 | Submission to Jurisdiction |
The submission by the Issuer acting through the General Partner as its general partner on its behalf to the jurisdiction of the courts of the state or the federal court of the City of New York, State of New York, United States of America contained in the Opinion Documents is valid and binding upon the Issuer acting through the General Partner as its general partner on its behalf under Luxembourg law.
| 5.9 | Enforcement of Judgments |
A final, conclusive and non-appealable commercial judgment rendered by a court of the state or the federal court of the City of New York State of New York, United States of America against the Issuer acting through the General Partner as its general partner on its behalf with respect to the Opinion Documents or the Notes will be recognised and enforced by a Luxembourg court without retrial or examination of the merits of the case subject to the provisions of Articles 678 et seq. of the Luxembourg New Code of Civil Procedure (Nouveau code de procedure civile).
| 5.10 | No immunity |
The Issuer acting through the General Partner acting as its general partner on its behalf is not entitled to claim for itself or any of its assets, revenues or properties any right of immunity from the jurisdiction of any court in Luxembourg or from any legal proceedings taken in Luxembourg under or in respect of the Opinion Documents or the Notes (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise).
Continuation 10
| 5.11 | Luxembourg international public policy or mandatory laws |
The obligations expressed to be assumed by the Issuer acting through the General Partner as its general partner on its behalf in the Opinion Documents and the Notes are not contrary to any rules of Luxembourg international public policy (ordre public international) or mandatory laws (lois de police) applicable in this context and in any proceedings commenced in Luxembourg, such obligations would be recognised by the Luxembourg courts as its legal, valid and binding obligations, enforceable in accordance with their terms.
| 6. | QUALIFICATIONS |
This Opinion is subject to the following qualifications:
| 6.1 | This Opinion is subject to all limitations resulting from the application of Luxembourg public policy rules, overriding statutes and mandatory laws as well as to all limitations by reasons of bankruptcy (faillite), composition with creditors (concordat préventif de la faillite), suspension of payments (sursis de paiement), controlled management (gestion contrôlée), insolvency, liquidation, reorganisation or the appointment of a temporary administrator (administrateur provisoire), administrative dissolution without liquidation (dissolution administrative sans liquidation) and any similar Luxembourg or foreign proceedings, regimes or officers relating to, or affecting, the rights of creditors generally (“Insolvency Proceedings”). |
| 6.2 | The RCS Certificates do not determine conclusively whether or not, the day before the closing, the matters or events enquired after have occurred or not. The registration with the RCS of an excerpt of one of the judicial decisions (listed in paragraph 5.1 of this Opinion) has to be done within one month from the judicial decision at the initiative of the persons designated by the law dated December 19, 2002, as amended, relating to the Luxembourg Trade and Companies Register (register de commerce et des sociétés de Luxembourg) (“RCS Law”). It is therefore not possible to determine (i) whether a request for the opening of insolvency proceedings, concordat, controlled management or judicial liquidation, administrative dissolution without liquidation has been served on an entity, or (ii) whether a judicial decision has been taken but is not yet filed with the RCS, or (iii) whether the excerpt of the judicial decision has been properly filed with the RCS in accordance with the RCS Law. |
| 6.3 | Powers of attorney, mandates (mandats) or appointments of agents (including appointments made for security purposes) may terminate by law and without notice upon the occurrence of Insolvency Proceedings and may be revoked despite being expressed to be irrevocable. |
| 6.4 | Our opinion that the Issuer and General Partner are incorporated and validly exist, is based on the Corporate Documents. The Corporate Documents are not capable of revealing conclusively whether or not a winding-up or administration petition or order has been presented or made, a receiver appointed, an arrangement with creditors proposed or approved or any other Insolvency Proceedings commenced. |
Continuation 11
| 6.5 | The determination of the governing law and the recognition of trusts by Luxembourg courts will be made in accordance with the Convention dated July 1, 1985 on the law applicable to trusts and their recognition (ratified by a law dated July 27, 2003 on trusts and fiduciary contracts) (“Hague Trusts Convention”), to the extent the relevant trust comes within the scope thereof. The law chosen by the parties will in principle be recognised as governing law, and the effects of the trust will be recognised in accordance with the Hague Trusts Convention, subject to the exceptions established therein, including the non-recognition of the chosen governing law if the situation has a closer link with another jurisdiction which does not recognise trusts, the application of mandatory laws of Luxembourg and other jurisdictions in the matters referred to in Article 15 of the Hague Trust Convention and the general exception of public order. |
| 6.6 | Corporate documents of, and court orders affecting, a Luxembourg company may not be available at the RCS forthwith upon their execution and filing and there may be a delay in the filing and publication of the documents or notices related thereto. We express no opinion as to the consequences of any failure by the Issuer to comply with its filing, notification, reporting and publication obligations under any applicable laws. |
| 6.7 | By application of Article 1200-1 of the 1915 Law, a Luxembourg company not respecting any provision of Luxembourg criminal law or which seriously contravenes any provision of the Luxembourg commercial code or any other Luxembourg law applicable to commercial companies may be put into judicial dissolution and liquidation upon the application of the public prosecutor. In particular, the annual accounts of a Luxembourg company must be approved by the general meeting of shareholders within six months after the end of the financial year and must be filed with the RCS within one month following their approval. The public prosecutor may request the judicial liquidation of a defaulting company. |
| 6.8 | Documents relating to a Luxembourg company, the publication of which is required by law, will only be valid vis-à-vis third parties from the day of their publication with the Luxembourg Official Gazette (Recueil Electronique des Sociétés et Associations) unless the company proves that the relevant third parties had prior knowledge thereof. Third parties may, however, rely upon said documents even if not yet published. During the fifteen (15) days period following their publication, such documents will be unenforceable vis-à-vis third parties who prove the impossibility for them to have knowledge thereof. |
| 6.9 | The registration of the Opinion Documents (and any documents in connection therewith) with the Administration de l’Enregistrement et des Domaines in Luxembourg may be required should the Opinion Documents (and any documents in connection therewith) be produced before an official Luxembourg authority (autorité constituée), attached as an annex to a deed (annexés à un acte) that itself is subject to mandatory registration, or deposited in the minutes of a notary (déposés au rang des minutes d’un notaire). In such cases, a nominal registration duty or an ad valorem duty may be payable, depending on the nature of the document to be registered or produced, or in the case of voluntary registration. A Luxembourg court or an official Luxembourg authority may require that the Opinion Documents (and any documents in connection therewith) and any judgment obtained in a foreign court be translated into French or German. |
Continuation 12
| 6.10 | No opinion is given in relation to the accuracy of any representation or warranty given by, or concerning, any of the Parties, or whether any of the Parties has complied with any covenant, undertaking, terms or conditions given by or binding upon them (except to the extent expressly opined upon in this Opinion). |
| 6.11 | With respect to the opinion expressed in paragraph 5.7, Luxembourg courts would not apply a chosen governing law if: |
| 6.11.1 | the choice of law was not made bona fide; |
| 6.11.2 | the governing law (other than Luxembourg law) was not pleaded and proved; or |
| 6.11.3 | such governing law (other than Luxembourg law) was pleaded and proved but held to be contrary to mandatory provisions of Luxembourg law or manifestly incompatible with the public policy rules (ordre public) of the forum. |
A Luxembourg court may also refuse to apply the chosen governing law if:
| 6.11.4 | at the time the Opinion Documents were entered into, all other elements relevant to the situation were located in a country other than the country whose law was the chosen governing law, to the extent the parties’ choice of governing law affects the application of the provisions of the law of that other country which cannot be derogated from by agreement, and which the court may then apply; |
| 6.11.5 | the overriding mandatory provisions of the law of the country where the obligations arising out of the Opinion Documents have to be, or have been performed, render the performance of the obligations under the Opinion Documents unlawful. In considering whether to give effect to those provisions, the court shall have regard to their nature and purpose and to the consequences of their application or non-application; |
| 6.11.6 | regarding the means of enforcement and measures to be taken by a creditor in case of a default in performance, it may apply the law of the country in which performance is taking place; or |
| 6.11.7 | a Party is subject to any Insolvency Proceedings, in which case it would apply the insolvency laws of the jurisdiction in which such insolvency proceedings have been opened to the effects of such insolvency proceedings, without prejudice to the exceptions set forth by the Insolvency Regulation. |
| 6.12 | A final, conclusive and non-appealable commercial judgment in respect of the Opinion Documents rendered against the Issuer in a competent court of the State of New York or a United States federal court located in the State of New York would be recognised and enforced by Luxembourg courts subject to the applicable enforcement procedure (exequatur) as set out in the relevant provisions of the Luxembourg New Civil Procedure Code. Pursuant to Luxembourg case law, the granting of exequatur is subject to the following requirements: |
Continuation 13
| • | the foreign judgment must be enforceable (exécutoire) in the country of origin; |
| • | the foreign court must have had jurisdiction both according to its own laws and to the Luxembourg conflict of jurisdiction rules; |
| • | the foreign procedure must have been regular according to the laws of the country of origin; |
| • | the foreign judgment must not have violated the rights of defence and must not have been obtained by fraud (fraude à la loi); |
| • | the foreign court must have applied the law which would have been designated by Luxembourg conflict law of rules, or, at least, the foreign judgment must not have contravened the principles underlying these rules (based on case law and legal doctrine, it is not certain that this condition would still be required for an exequatur to be granted by a Luxembourg court); and |
| • | the considerations of the foreign judgment must not contravene Luxembourg international public policy. |
Luxembourg courts do not currently review the merits of a judgment rendered by a competent court of New York.
| 6.13 | The provisions of a jurisdiction clause whereby the taking of proceedings in one or more jurisdictions shall not preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, might not be entirely enforceable in a Luxembourg court. If proceedings were previously commenced between the same parties and on the same grounds as the proceedings in Luxembourg, a plea of pendency might be opposed in the Luxembourg court and proceedings either stayed pending the termination of the proceedings abroad or dismissed, as the case may be. |
| 6.14 | Contractual clauses stipulating that a Luxembourg company can delegate its rights to file a claim, take any action or institute proceedings in the name of the Luxembourg company may be unenforceable under Luxembourg law. In particular, actions in front of Luxembourg courts must be brought in the name of the principal and not in the name of an agent of the principal (nul ne plaide par procureur). |
| 6.15 | The president of a competent court in Luxembourg, in any matter in which a plaintiff seeks provisional measures in summary proceedings (référé) may assume jurisdiction on the basis of the general provisions of Luxembourg law notwithstanding the aforementioned submission to the jurisdiction of the courts of other countries. |
Continuation 14
| 6.16 | We do not express, nor imply, any opinion whatsoever on (i) any tax, transfer pricing, regulatory (including, but not limited to, AIFMD and Data Protection regulations), accounting, or public or administrative law, matters, or (ii) the validity or enforceability of the Opinion Documents, the obligations thereunder or the consequences thereof (other than, but only to the extent expressly opined upon herein, under Luxembourg law, in respect of the Issuer and the General Partner only). |
| 6.17 | Payments made, as well as other transactions concluded or performed, during the so-called suspect period (période suspecte) which is fixed by the Luxembourg court and dates back (not more than) six months as from the date on which the Luxembourg court formally adjudicates a person bankrupt and as for specific payments and transactions, during then days before the commencement of such period, are subject to cancellation by the Luxembourg court upon proceedings instituted by the Luxembourg insolvency receiver (curateur), in particular, |
| (a) | Article 445 of the code of commerce sets out an additional period of then days preceding the suspect period fixed by the court during which specified transactions (such as, in particular, the granting of a security interest for antecedent debts; the payment of debts which have not fallen due, whether payment is made in cash or by way of assignment, sale, set-off or any other means; the payment of debts which have fallen due by any other means than in cash or by bill of exchange; the sale of assets without consideration or for materially inadequate consideration) must be set aside or declared null and void, if so requested by the insolvency receiver. Article 445 of the code of commerce does not apply for financial collateral arrangements subject to the Luxembourg law of 5 August 2005 on financial collateral arrangements, as amended (“Collateral Law”); |
| (b) | Article 446 of the code of commerce states that payments made for matured debts as well as other transactions concluded for consideration during the suspect period are subject to cancellation by the court upon proceedings instituted by the insolvency receiver if they were concluded with the knowledge of the bankrupt’s cessation of payments. Article 446 of the code of commerce does not apply for financial collateral arrangements subject to the Collateral Law; and |
| (c) | regardless of the suspect period, Article 448 of the code of commerce and Article 1167 of the Luxembourg Civil Code (actio pauliana) give a creditor the right to challenge any fraudulent payments and transactions made prior to the bankruptcy, without limitation of time. |
| 6.18 | Any judgment awarded before the Luxembourg courts may be expressed in a currency other than the euro or the euro equivalent at the time of judgment or payment. However, any obligation to pay a sum of money expressed in any currency other than the euro will be enforceable in Luxembourg, provided, however, that the amount to be paid in Luxembourg shall be the euro equivalent to the sum in question. |
Continuation 15
| 6.19 | The terms “enforceable”, “enforceability”, “valid”, “legal”, “binding” and “effective” (or any combination thereof) where used herein, mean that the obligations assumed by the relevant party under the relevant document are of a type which the laws of Luxembourg generally recognises or enforces; enforcement by a Luxembourg court will in any event be subject to (i) the extent to which the relevant obligations are enforceable under their governing law (if other than Luxembourg law), (ii) the power or obligation of a Luxembourg court to stay proceedings or decline jurisdiction if prior concurrent proceedings have been brought elsewhere, (iii) the rules of civil and commercial procedure as applied by a Luxembourg court, the rules of force majeure, good faith (bonne foi), abuse of law (abus de droit), unforeseen circumstances and other defences and remedies afforded by Luxembourg law generally (specific performance may not always be available and may result only in damages), (iv) any matter or factual circumstance such as fraud, coercion, duress, undue influence or mistake, (v) general principles of criminal law, investigations and prosecution, including but not limited to criminal freezing orders, and (vi) public law sanctions or restraining measures taken from time to time under applicable laws, treaties or other instruments. |
| 6.20 | In particular, (a) equitable remedies, such as the grant of an injunction or an order for specific performance, are not automatically admitted by Luxembourg courts and when such remedies are available, they are discretionary and, accordingly, the Luxembourg courts might make an award of damages where an equitable remedy is sought, (b) claims may be or become barred by prescription or lapse of time or may be or become subject to defences of set-off or counterclaim, (c) enforcement of obligations (and the contractually binding nature thereof) may be invalidated by reason of fraud and (d) enforcement of the obligations may be limited to the extent that matters which it has been expressly assumed herein will be done have not been done. |
| 7. | MISCELLANEOUS |
| 7.1 | We consent to the filing of this Opinion with the SEC as an exhibit to the Issuer’s Current Report on Form 8-K to be filed on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement. |
| 7.2 | Each person relying on this Opinion agrees, in so relying, that only DLA Piper Luxembourg shall have any liability in connection with this Opinion, and that, except as otherwise required by the Securities Act, the agreement in this clause 7.2 and all liability and other matters relating to this Opinion shall be governed exclusively by Luxembourg law. |
| 7.3 | The Issuer may refer to DLA Piper Luxembourg giving this Opinion under the heading “Legal Matters” in the related Preliminary Prospectus Supplement and the Final Prospectus Supplement included in the Registration Statement. |
| 7.4 | Luxembourg legal concepts are expressed in English terms, which may not correspond to the original French or German terms relating thereto. We accept no liability for omissions or inaccuracies attributable to the use of English terms. |
Continuation 16
| 7.5 | Nothing in this Opinion should be construed as implying that we are familiar with the affairs of any of the Parties, and this Opinion is based solely on the investigations and subject to the limits stated herein. The opinions in this Opinion are strictly limited to the matters stated herein and do not extend to, and are not to be read as extending by implication to, any other matter or the transactions to which they relate or otherwise. The delivery of this Opinion shall in no event imply or intend, or deem to imply or intend, to provide legal advice or recommendation by us with respect to the appropriateness of (i) the transaction referred to, or described, in the Opinion Documents or (ii) the reliance on this Opinion, which are commercial decisions for the Parties. This Opinion cannot be used, considered, seen or quoted, as a precedent for any other legal opinion, note, memorandum or advice whatsoever given by DLA Piper Luxembourg to the Addressee in the future, and no other opinion is, or may be, implied or inferred herefrom. |
| Yours faithfully, /s/ Laurent Massinon | ||
| DLA PIPER LUXEMBOURG | ||
| By: | LAURENT MASSINON Partner - Gérant - Avocat à la Cour | |
Exhibit 5.4
Medtronic, Inc.
710 Medtronic Parkway
Minneapolis MN 55432
www.medtronic.com
March 30, 2023
Medtronic, Inc.
710 Medtronic Parkway
Minneapolis, MN 55432
Re: Medtronic Global Holdings S.C.A. Senior Notes
Ladies and Gentlemen:
This opinion is furnished to you in connection with the offer and sale by Medtronic Global Holdings S.C.A, an entity organized under the laws of Luxembourg (“Medtronic Luxco”) of $1,000,000,000 aggregate principal amount of its 4.250% Senior Notes due 2028 (the “2028 Notes”) and $1,000,000,000 aggregate principal amount of its 4.500% Senior Notes due 2033 (the “2033 Notes” and together with the 2028 Notes, the “Notes”), pursuant to the Underwriting Agreement dated March 23, 2023 (the “Underwriting Agreement”), among Medtronic Luxco, the Guarantors (as defined below), Barclays Capital Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC, as representatives of the Underwriters party to the Underwriting Agreement. The Notes will be fully and unconditionally guaranteed on an unsecured unsubordinated basis by Medtronic, Inc., a Minnesota corporation (the “Company,” and such guarantee, the “Company Guarantee”) and Medtronic Public Limited Company, an entity incorporated under the laws of Ireland (“Medtronic plc,” and together with the Company, the “Guarantors”).
The Notes will be issued pursuant to the Indenture dated as of March 28, 2017 (the “Base Indenture”) among Medtronic Luxco, the Guarantors and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended by the Sixth Supplemental Indenture dated as of February 22, 2023 (the “Sixth Supplemental Indenture”), among Medtronic Luxco, the Guarantors and the Trustee, and as supplemented by the Seventh Supplemental Indenture dated as of March 30, 2023 (the “Seventh Supplemental Indenture” and together with the Base Indenture, and the Sixth Supplemental Indenture, the “Indenture”), among Medtronic Luxco, the Guarantors and the Trustee.
Medtronic Luxco, the Company and Medtronic plc have filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-3 (File No. 333-270272) under the Securities Act of 1933, as amended (the “Act”), on March 3, 2023 (the “Registration Statement”) including the prospectus dated as of March 3, 2023 (the “Base Prospectus”), as supplemented by a preliminary prospectus supplement dated as of March 23, 2023 (the “Preliminary Prospectus Supplement”) relating to the Notes, and a prospectus supplement dated as of March 23, 2023 (the “Prospectus Supplement”) relating to the Notes.
I am the Legal Director, Corporate & Securities of the Company. As to various matters of fact material to this opinion, I have relied upon certificates of public officials and upon the representations of the Company or its officers or directors, including those made in the Indenture and in documents or certificates executed in connection therewith. I have also examined the Amended and Restated Articles of Incorporation and Amended and Restated By-laws of the Company, each as amended to date, and originals or copies of such other corporate documents and records and other certificates and instruments and have made such other investigation as I have deemed necessary in connection with the opinion hereafter set forth.
March 30, 2023
Page 2
My opinion is limited solely to the present substantive law of the State of Minnesota (excluding its conflict of laws principles). I express no opinion as to the laws of any other state or jurisdiction. I express no opinion on any matter of county, municipal, or special political subdivision law.
For purposes of this opinion, I have assumed, among other things, the genuineness of all signatures, the authenticity of all documents submitted as originals, the conformity to original documents of all documents submitted as copies, and that the information in the certificates, representations, and statements referred to above remains true and complete as of the date hereof. In examining documents, I have assumed that all parties executing the same, other than the Company, have all necessary power to enter into and perform all of their obligations thereunder and that such parties have duly executed and delivered such documents. I have also assumed, as to each such party other than the Company, the due authorization by all requisite action of the execution, delivery and performance of such documents by such parties, in each case at the requisite time in order for such action to be effective, and that such documents are legal, valid, binding on and enforceable against such parties in accordance with their respective terms. I have also assumed that each natural person executing any of the documents and agreements involved in the matters covered by this opinion has the capacity and is legally competent to do so. I have assumed that each of the documents and agreements involved in any matter covered by this opinion letter accurately describes the mutual understanding of the parties as to all matters contained therein and that no other agreements or understandings exist between the parties relating to the transactions contemplated by such document or agreement.
Based upon and subject to the foregoing, and subject to the qualifications hereinafter set forth, it is my opinion as of this date that:
| 1. | Based exclusively upon a good standing certificate received from the Office of the Secretary of State of Minnesota, the Company is validly existing as a corporation in good standing under the laws of Minnesota. |
| 2. | The Company has the corporate power and authority under Minnesota law to enter into the Underwriting Agreement, the Indenture and the Guarantees and to perform its obligations thereunder. |
| 3. | Each of the Underwriting Agreement, the Indenture and the Company Guarantee has been duly authorized, executed and delivered by the Company. |
I hereby consent to the filing of this opinion with the Commission as an exhibit to Medtronic plc’s Current Report on Form 8-K to be filed on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of my name therein and in the related Prospectus and any prospectus supplement under the caption “Legal Matters.” In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
[Signature Page Follows]
| Very truly yours, |
| /s/ Thomas L. Osteraas |
| Thomas L. Osteraas |
| Legal Director – Corporate and Securities of Medtronic, Inc. |
[Signature Page to Medtronic, Inc. Opinion]