Meta Platforms, Inc 8-K, filed Nov 12, 2026
Meta Platforms, Inc. (META)
About this 8-K
Meta Platforms, Inc filed this 8-K on November 12, 2026.
Meta Platforms, Inc. completed a euro senior notes offering spanning 2031 through 2065 maturities, with coupons from 4.300% to 6.400%. AI summary
Items reported
- 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
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| Item 8.01 | Other Events. |
On November 12, 2026, Meta Platforms, Inc. (the “Company”) completed an offering of €1,750,000,000 aggregate principal amount of its 4.300% Senior Notes due 2031 (the “2031 Notes”), €1,250,000,000 aggregate principal amount of its 4.650% Senior Notes due 2033 (the “2033 Notes”), €1,000,000,000 aggregate principal amount of its 4.900% Senior Notes due 2035 (the “2035 Notes”), €1,750,000,000 aggregate principal amount of its 5.400% Senior Notes due 2038 (the “2038 Notes”), €1,750,000,000 aggregate principal amount of its 6.050% Senior Notes due 2044 (the “2044 Notes”), and €1,500,000,000 aggregate principal amount of its 6.400% Senior Notes due 2065 (the “2065 Notes” and, together with the 2031 Notes, the 2033 Notes, the 2035 Notes, the 2038 Notes, and the 2044 Notes, the “EUR Notes”). The offering of the EUR Notes was made pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-295425), which Registration Statement relates to the offer and sale on a delayed basis from time to time of an indeterminate amount of the Company’s debt securities. Further information concerning the EUR Notes and related matters is set forth in the Company’s Prospectus Supplement dated November 4, 2026, which was filed with the Securities and Exchange Commission on November 6, 2026.
In connection with the issuance of the EUR Notes, the Company entered into an Underwriting Agreement dated as of November 4, 2026 (the “Underwriting Agreement”) with Citigroup Global Markets Limited and Morgan Stanley & Co. International plc, as representatives of the several underwriters listed in Schedule II to the Underwriting Agreement. The foregoing description of the Underwriting Agreement is qualified in its entirety by the terms of such agreement, a copy of which is attached hereto as Exhibit 1.1 and is incorporated by reference herein.
The EUR Notes were issued pursuant to an Indenture with U.S. Bank Trust Company, National Association, as trustee, dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the seventh supplemental indenture thereto, dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). The Seventh Supplemental Indenture is attached hereto as Exhibit 4.1 and is incorporated by reference herein. The Base Indenture was previously incorporated by reference into the Registration Statement pursuant to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on August 9, 2022. The forms of the 2031 Notes, the 2033 Notes, the 2035 Notes, the 2038 Notes, the 2044 Notes, and the 2065 Notes are attached hereto as Exhibits 4.2, 4.3, 4.4, 4.5, 4.6, and 4.7, respectively, and are incorporated by reference herein.
The above description of the Underwriting Agreement, the Indenture, and the EUR Notes does not purport to be complete and is qualified in its entirety by reference to the Underwriting Agreement, the Indenture, and the forms of EUR Notes.
| Item 9.01 | Financial Statements and Exhibits. |
(d) 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.
| META PLATFORMS, INC. | ||||||
| Date: November 12, 2026 | By: | /s/ Katherine R. Kelly | ||||
| Name: | Katherine R. Kelly | |||||
| Title: | Vice President and Corporate Secretary | |||||
Exhibit 1.1
EXECUTION VERSION
META PLATFORMS, INC.
€1,750,000,000 4.300% SENIOR NOTES DUE 2031
€1,250,000,000 4.650% SENIOR NOTES DUE 2033
€1,000,000,000 4.900% SENIOR NOTES DUE 2035
€1,750,000,000 5.400% SENIOR NOTES DUE 2038
€1,750,000,000 6.050% SENIOR NOTES DUE 2044
€1,500,000,000 6.400% SENIOR NOTES DUE 2065
UNDERWRITING AGREEMENT
November 4, 2026
November 4, 2026
To the Representatives named in Schedule I hereto
for the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
Meta Platforms, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom Citigroup Global Markets Limited and Morgan Stanley & Co. International plc are acting as representatives (the “Representatives”), the principal amount of its debt securities identified in Schedule I hereto (the “Securities”). The Securities will be issued pursuant to an indenture dated as of August 9, 2022 (the “Base Indenture”) between the Company and the Trustee identified in Schedule I (the “Trustee”), as supplemented by the seventh supplemental indenture thereto, to be dated as of November 12, 2026 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). If the firm or firms listed in Schedule II hereto include only the Representatives listed in Schedule I hereto, then the terms “Underwriters” and “Representatives” as used herein shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (the file number of which is set forth in Schedule I hereto), including a prospectus, relating to the securities (the “Shelf Securities”), including the Securities, to be issued from time to time by the Company. The registration statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf Securities dated April 30, 2026 in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Base Prospectus.” The Base Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the documents and pricing information set forth opposite the caption “Time of Sale Prospectus” in Schedule I hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act. As used herein, the terms “Registration Statement,” “Base Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the Company’s knowledge, threatened by the Commission. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement, and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, 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 not misleading, (iii) the Registration Statement as of the date hereof does 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 not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, 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, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact
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necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, 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, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I hereto, forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, and to enter into and perform its obligations under each of this Agreement, the Indenture and the Securities. The Company is duly qualified to transact business and is in good standing (to the extent the concept of good standing is applicable in such jurisdiction) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing (to the extent the concept of good standing is applicable in such jurisdiction) would not reasonably be expected to, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole (a “material adverse effect”).
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(e) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Securities Act) of the Company has been duly incorporated, organized, or formed, as applicable, is validly existing as a corporation or other business entity, as applicable, in good standing (to the extent the concept of good standing is applicable in such jurisdiction) under the laws of the jurisdiction of its incorporation, organization, or formation, as applicable, has the corporate or other business entity, as applicable, power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing (to the extent the concept of good standing is applicable in such jurisdiction) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to, singly or in the aggregate, have a material adverse effect; all of the issued shares of capital stock or other equity interests of each such significant subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except to the extent that such liens, encumbrances, equities or claims would not reasonably be expected to, singly or in the aggregate, have a material adverse effect.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The Base Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company. The Supplemental Indenture has been duly authorized and, on the Closing Date, will have been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of the Indenture by the Trustee, the Indenture will be a valid and binding agreement of, the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability.
(h) The Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability, and will be entitled to the benefits of the Indenture.
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(i) The Securities to be purchased by the Underwriters from the Company will on the Closing Date be in the form contemplated by the Indenture. The Securities and the Indenture will conform in all material respects to the descriptions thereof in the Time of Sale Prospectus and Prospectus.
(j) (i) The Company is not in violation of its charter, bylaws or other constitutive document and (ii) neither the Company nor any of its subsidiaries is in default (or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture, mortgage, loan or credit agreement, note, contract, franchise, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”), except, in the case of clause (ii) above, for such Defaults as would not reasonably be expected to, singly or in the aggregate, result in a material adverse effect. The Company’s execution, delivery and performance of this Agreement and the Indenture, and the issuance and delivery of the Securities, and consummation of the transactions contemplated hereby and thereby and by the Time of Sale Prospectus and the Prospectus (i) will not result in any violation of the provisions of the charter, bylaws or other constitutive document of the Company, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument, except for such conflicts, breaches, Defaults, liens, charges or encumbrances as would not reasonably be expected to, singly or in the aggregate, result in a material adverse effect, and (iii) will not result in any violation of any law, administrative regulation or administrative or court decree applicable to the Company or any subsidiary, except for such violations as would not reasonably be expected to, singly or in the aggregate, have a material adverse effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
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(k) No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for the Company’s execution, delivery and performance of this Agreement or the Indenture, or the issuance and delivery of the Securities, or consummation of the transactions contemplated hereby and thereby and by each of the Time of Sale Prospectus and the Prospectus, except (i) such as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable securities laws of the several states of the United States or provinces of Canada and (ii) such approvals or authorizations as may be required in connection with the listing of the Securities on the NASDAQ Bond Exchange (the “NASDAQ”).
(l) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(m) There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not reasonably be expected to, singly or in the aggregate, have a material adverse effect, or adversely affect the power or ability of the Company to perform its obligations under this Agreement, the Indenture or the Securities or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.
(n) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(o) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
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(p) The Company and each of its subsidiaries, to the Company’s knowledge, (i) are in compliance with any and all applicable foreign, 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 all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not reasonably be expected to, singly or in the aggregate, have a material adverse effect.
(q) To the Company’s knowledge, there are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would reasonably be expected to, singly or in the aggregate, have a material adverse effect.
(r) (i) None of the Company or any of its subsidiaries or, to the Company’s knowledge, any controlled affiliates, director, officer, employee, agent or representative of the Company or of any of its subsidiaries or controlled affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of any payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) in order to improperly influence official action, or to any person, that could result in a material violation of any applicable anti-corruption laws; (ii) the Company and each of its subsidiaries and controlled affiliates have conducted their businesses in compliance in all material respects with applicable anti-corruption laws and have instituted and maintain policies and procedures reasonably designed to promote and achieve compliance with such laws in all material respects; and (iii) neither the Company nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
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(s) The operations of the Company and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and each of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(t) (i) None of the Company, any of its subsidiaries, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent, controlled affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), His Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), except as otherwise authorized by applicable law, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea and the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine), except to the extent permissible for an individual or entity required to comply with Sanctions.
(ii) The Company will not, directly or knowingly indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, except to the extent permissible for an individual or entity required to comply with Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
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(iii) For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions, except to the extent permissible for an individual or entity required to comply with Sanctions.
The representations and warranties contained in this paragraph 1(t) shall not apply to any person if and to the extent that the expression of, compliance with, or receipt or acceptance of such representations or undertakings would breach any provision of (i) Council Regulation (EC) No. 2271/96, as amended from time to time (the “EU Blocking Regulation”), or any law or regulation implementing the EU Blocking Regulation in any member state of the European Union; (ii) any applicable and similar blocking or anti-boycott law, instrument or regulation in the United Kingdom; or (iii) solely to the extent applicable to the relevant person, Section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) or any similar applicable anti-boycott law or regulation.
(u) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus (i) the Company and its subsidiaries, have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends, repurchases pursuant to the Company’s share repurchase program described in the Time of Sale Prospectus and in connection with the exercise of outstanding equity awards granted pursuant to the equity compensation plans described in the Time of Sale Prospectus; and (iii) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company and its subsidiaries except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(v) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property (other than intellectual property, which is described elsewhere in this Agreement) owned by them which is material to the business of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and, to the Company’s knowledge, enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case except as described in the Time of Sale Prospectus.
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(w) Except as disclosed in the Time of Sale Prospectus or as would not reasonably be expected to, singly or in the aggregate, have a material adverse effect: (i) the Company and its subsidiaries own or possess, or can acquire on commercially reasonable terms a license to use, all patents, patent rights, licenses, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names (collectively, “Intellectual Property Rights”) currently employed by them in connection with the business now operated by them; (ii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity, scope or enforceability of any Intellectual Property Rights owned by the Company and its subsidiaries; (iii) neither the Company nor any of its subsidiaries, to the Company’s knowledge, has received any written notice of infringement of or conflict with asserted rights of others with respect to Intellectual Property Rights; (iv) to the Company’s knowledge, no third party is infringing, misappropriating or otherwise violating, or has infringed, misappropriated or otherwise violated, any Intellectual Property Rights owned by the Company; (v) to the Company’s knowledge, neither the Company nor any of its subsidiaries infringes, misappropriates or otherwise violates, or has infringed, misappropriated or otherwise violated, any Intellectual Property Rights of any third party; (vi) all employees or contractors engaged in the development of Intellectual Property Rights on behalf of the Company or any subsidiary of the Company have executed an invention assignment agreement whereby such employees or contractors presently assign all of their right, title and interest in and to such Intellectual Property Rights to the Company or the applicable subsidiary, and to the Company’s knowledge no such agreement has been breached or violated; and (vii) the Company and its subsidiaries use, and have used, commercially reasonable efforts to appropriately maintain all information of the Company intended to be maintained as a trade secret.
(x) Except as described in the Time of Sale Prospectus or the Prospectus or as would not reasonably be expected to, singly or in the aggregate, have a material adverse effect: (i) the Company and its subsidiaries use and have used any and all software and other materials distributed under a “free,” “open source,” or similar licensing model (including but not limited to the MIT License, Apache License, GNU General Public License, GNU Lesser General Public License and GNU Affero General Public License) (“Open Source Software”) in compliance with all license terms applicable to such Open Source Software; and (ii) neither the Company nor any of its subsidiaries uses or distributes or has used or distributed any Open Source Software in any manner that requires
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or has required (A) the Company or any of its subsidiaries to permit reverse engineering of any software code or other technology owned by the Company or any of its subsidiaries or (B) any software code or other technology owned by the Company or any of its subsidiaries to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making derivative works or (3) redistributed at no charge.
(y) Except as described in the Time of Sale Prospectus or the Prospectus or as would not reasonably be expected to, singly or in the aggregate, have a material adverse effect: (i) the Company and each of its subsidiaries have complied and are presently in compliance with all internal and external privacy policies, contractual obligations and applicable binding, industry standards, laws, statutes, judgments, orders, rules and regulations of any court or arbitrator or other governmental or regulatory authority, in each case, relating to the collection, use, transfer, import, export, storage, protection, disposal and disclosure by the Company or any of its subsidiaries of personal, personally identifiable, household, sensitive, confidential or regulated data (“Data Security Obligations,” and such data, “Data”); (ii) the Company has not received any written notification of or written complaint regarding its non-compliance with any Data Security Obligation; and (iii) there is no action, suit or proceeding by or before any court or governmental agency, authority or body pending or, to the Company’s knowledge, threatened alleging the Company’s non-compliance with any Data Security Obligation.
(z) Except as described in the Time of Sale Prospectus or the Prospectus or as would not reasonably be expected to, singly or in the aggregate, have a material adverse effect: (i) the Company and its subsidiaries have used commercially reasonable efforts to establish and maintain, and have established, maintained, implemented and complied with, commercially reasonable information technology, information security, cyber security and data protection controls, policies and procedures that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used in connection with the operation of the Company’s and its subsidiaries’ businesses (“Breach”); and (ii) to the Company’s knowledge, there has been no such Breach.
(aa) No material labor dispute with the employees of the Company or any of its subsidiaries, or with the employees of any principal supplier of the Company, exists or, to the best of the Company’s knowledge, is threatened or imminent, except as described in or incorporated by reference into the Time of Sale Prospectus and the Prospectus.
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(bb) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company believes are prudent and customary in the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to, singly or in the aggregate, have a material adverse effect.
(cc) The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations and permits would not reasonably be expected to, singly or in the aggregate, have a material adverse effect, and neither the Company nor any of its subsidiaries has received any written notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, would reasonably be expected to have a material adverse effect, except as described in the Time of Sale Prospectus.
(dd) The Company and its subsidiaries and their respective officers and directors are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act,” which term, as used herein, includes the rules and regulations of the Commission promulgated thereunder).
(ee) The Company and each of its subsidiaries maintain a system of internal accounting controls that is in compliance with the Sarbanes-Oxley Act and is 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 U.S. generally accepted accounting principles (“U.S. GAAP”) 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 is accurate. Except as described in the Time of Sale Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting, except as otherwise disclosed in the Time of Sale Prospectus.
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(ff) In each case, except as disclosed in the Time of Sale Prospectus, the Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not reasonably be expected to, singly or in the aggregate, have a material adverse effect) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not reasonably be expected to, singly or in the aggregate, have a material adverse effect, or, except as currently being contested in good faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no unpaid tax deficiency has been determined adversely to the Company or any of its subsidiaries which, singly or in the aggregate, has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any unpaid tax deficiency which could reasonably be expected to be determined adversely to the Company or its subsidiaries and which would reasonably be expected to have) a material adverse effect.
(gg) The financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the related schedules and notes thereto, comply as to form in all material respects with the applicable accounting requirements of the Securities Act and present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates shown and its results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with U.S. GAAP applied on a consistent basis throughout the periods covered thereby except for any normal year-end adjustments in the Company’s quarterly financial statements. The other financial information included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby. The statistical, industry-related and market-related data included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate and such data is consistent with the sources from which they are derived, in each case in all material respects.
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(hh) Ernst & Young LLP (“E&Y”), who has audited the consolidated financial statements of the Company and its subsidiaries and delivered its report with respect to the audited consolidated financial statements filed with the Commission as part of the Company’s Annual Report on Form 10-K which is incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
(ii) 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.
(jj) Neither the Company nor any of its subsidiaries, nor any affiliates of the Company or any of its subsidiaries, has taken, 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.
(kk) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Securities registered pursuant to the Registration Statement.
(ll) Neither the Company nor any of its subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(mm) The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974 (as amended, “ERISA,” which term, as used herein, includes the regulations and published interpretations thereunder)) established or maintained by the Company and its subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA and applicable law. “ERISA Affiliate” means, with respect to the Company or a subsidiary of the Company, any member of any group of organizations described in Section 414 of the Internal Revenue Code of 1986 (as amended, the “Code,” which term, as used herein, includes the regulations and published interpretations thereunder) of which the Company or such subsidiary is a member. No “reportable event” (as
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defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or its subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company or its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or maintained by the Company or its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401 of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amounts of Securities set forth in Schedule II hereto opposite its name at the purchase prices (the “Purchase Price”) set forth in Schedule I hereto.
3. Public Offering. The Company is advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after the Registration Statement and this Agreement have become effective as in the Representatives’ judgment is advisable. The Company is further advised by the Representatives that the Securities are to be offered to the public upon the terms set forth in the Prospectus.
4. Payment and Delivery. Payment for the Securities shall be made by wire transfer in euros in immediately available funds, to an account specified in writing to the Representatives by the Company on the closing date and time set forth in Schedule I hereto, or at such other time on the same or such other date, not later than the fifth business day thereafter, as may be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment for the Securities shall be made against delivery to the Representatives on the Closing Date for the respective accounts of the several Underwriters of one or more global notes representing the Securities (collectively, the “Global Notes”) registered in such names and in such denominations as the Representatives shall request in writing not later than one full business day prior to the Closing Date, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid. Delivery of the Securities shall be made through the facilities of Euroclear Bank S.A./N.V., or any successor securities clearing agency (“Euroclear”), and Clearstream Banking S.A. or any successor securities clearing agency (“Clearstream”), unless the Representatives shall otherwise instruct.
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Morgan Stanley & Co. International plc or such other Underwriter as the Underwriters may appoint to settle the Securities (the “Settlement Bank”) acknowledges that the Securities represented by the Global Notes will initially be credited to an account (the “Commissionaire Account”) for the benefit of the Settlement Bank the terms of which include a third-party beneficiary clause (‘stipulation pour autrui’) with the Company as the third-party beneficiary and provide that such Securities are to be delivered to others only against payment of the net subscription monies for the Securities (i.e., less the commissions and expenses to be deducted from the subscription monies) into the Commissionaire Account on a delivery against payment basis. The Settlement Bank acknowledges that (i) the Securities represented by the Global Notes shall be held to the order of the Company as set out above and (ii) the net subscription monies for the Securities received in the Commissionaire Account (i.e., less the commissions and expenses deducted from the subscription monies) will be held on behalf of the Company until such time as they are transferred to the Company’s order. The Settlement Bank undertakes that the net subscription monies for the Securities (i.e., less the commissions and expenses deducted from the subscription monies) will be transferred to the Company’s order promptly following receipt of such monies in the Commissionaire Account. The Company acknowledges and accepts the benefit of the third-party beneficiary clause (‘stipulation pour autrui’) pursuant to the Belgian and/or Luxembourg Civil Code, as applicable, in respect of the Commissionaire Account.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or, to the knowledge of the Company, threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
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(b) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Sections 5(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Davis Polk & Wardwell LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from E&Y, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” no more than three (3) days prior to the Closing Date.
(g) The Company shall have executed and delivered the Supplemental Indenture, in form and substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received executed copies thereof.
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(h) On or before the Closing Date, the Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.
(i) On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 6(i), 8 and 11 hereof shall at all times be effective and shall survive such termination.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to the Representatives, without charge, a signed copy of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to deliver to each of the Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object.
(c) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
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(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Securities may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request.
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(h) To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (which may be satisfied by filing with the Commission’s EDGAR system).
(i) To advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, to use its best efforts to obtain the withdrawal thereof at the earliest possible moment. Notwithstanding the foregoing, the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456 (b)(1) under the Securities Act, if applicable), all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, (iv) any fees charged by the rating agencies for the rating of the Securities, (v) the cost of the preparation, issuance and delivery of the Securities, including all expenses and application fees in connection with the approval of the Securities for clearance and settlement through Clearstream and Euroclear, (vi) the costs and charges of any trustee, transfer agent, registrar, depositary, or paying agent, (vii) the costs and
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expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show (it being understood that the Company and the Underwriters shall each bear one-half of the costs, respectively, associated with any charter aircraft), (viii) the document production charges and expenses associated with printing this Agreement (ix) all expenses and application fees related to the listing of the Securities on the NASDAQ, and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution,” and Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(k) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
(l) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus.
(m) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Securities (other than (i) the Securities which are to be sold pursuant hereto, (ii) unsecured U.S. dollar-denominated debt securities issued in the Concurrent Securities Offering (as defined in the Time of Sale Prospectus and the Prospectus) or (iii) securities permitted with the prior written consent of the Representatives identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters).
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(n) To prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(o) The Company will deliver to each Underwriter (or its agent), on or prior to the date of execution of this Agreement, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification of the foregoing Certification.
(p) The Company will use its commercially reasonable efforts to list, subject to the notice of issuance if applicable, the Securities on the NASDAQ for trading on such exchange as promptly as practicable after the date hereof.
(q) The Company will use its commercially reasonable efforts to cause and maintain the eligibility of the Securities for clearance and settlement through Euroclear and Clearstream.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, its directors and officers and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim, as such expenses are incurred) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”), the Prospectus or any amendment or supplement thereto, or arise out of, or are based upon, any omission or alleged omission to state therein, in the case of the Registration Statement, a material fact required to be stated therein or necessary to make
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the statements therein not misleading, or, in the case of any other such document, a material fact necessary to make the statements therein in light of the circumstances under which they were made not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any such 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, it being understood and agreed that the only such information furnished by the Underwriters through the Representatives consists of the information described as such in paragraph (b) below. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto. The Company hereby acknowledges that the only information that the Underwriters through the Representatives have furnished to the Company expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto are the statements set forth in the fifth paragraph, the third and fourth sentences of the seventh paragraph and the first and second sentences of the eighth paragraph under the caption “Underwriting” in the preliminary prospectus and the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing; provided, however, that the failure to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under this Section 8 except to the extent that it has been materially prejudiced by such failure (through the forfeiture of substantive rights and defenses) and shall not relieve the indemnifying party from any liability that the indemnifying party may have to an indemnified party other than under this Section 8. The indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the
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indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, or (iv) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings 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 such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives authorized to appoint counsel under this Section set forth in Schedule I hereto, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party 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 party agrees to indemnify the indemnified party from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages, liabilities or reasonably incurred expenses referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or reasonably
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incurred expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters bear to the aggregate initial public offering price of the Securities as set forth in the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective principal amounts of Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be obligated to make contributions hereunder that in the aggregate exceed the total discounts, commissions and other compensation received by such Underwriter under this Agreement. 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 remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
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(f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. The Underwriters may terminate this Agreement by notice given by the Representatives 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, or by, as the case may be, the New York Stock Exchange or the NASDAQ Global Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States, the United Kingdom or the European Union, or with respect to the Euroclear or Clearstream systems, shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal, New York State, United Kingdom or European Union authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representatives’ judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the Representatives’ judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule II bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Securities to
26
be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
For the avoidance of doubt, to the extent an Underwriter’s obligation to purchase Securities hereunder constitutes a BRRD Liability or a UK Bail-In Liability (each as defined below) and such Underwriter does not, on the Closing Date, purchase the full amount of the Securities that it has agreed to purchase hereunder due to the exercise by the Relevant Resolution Authority (as defined below) or the relevant UK resolution authority, as applicable, of its powers under the relevant Bail-in Legislation or the UK Bail-in Legislation, as applicable, as set forth in Section 14 with respect to such BRRD Liability and Section 15 with respect to such UK Bail-in Liability, such Underwriter shall be deemed, for all purposes of this Section 10, to have defaulted on its obligation to purchase such Securities that it has agreed to purchase hereunder but has not purchased, and this Section 10 shall remain in full force and effect with respect to the obligations of the other Underwriters.
11. Reimbursement of the Expenses of the Underwriters. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement (which, for purpose of this Section 11, shall not include termination by the Underwriters pursuant to items (i), (iii), (iv) or (v) of Section 9), or if for any reason the Company shall be unable to perform its obligations under this Agreement the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
12. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Securities, represents the entire agreement between the Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Securities.
(b) This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
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(c) The Company acknowledges that in connection with the offering of the Securities: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement, any contemporaneous written agreements and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those of the Company, and (iv) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.
13. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 13 “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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14. Contractual Recognition of Bail-In (EEA). Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding among the Underwriters and the Company, the Company acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority and acknowledges, accepts and agrees to be bound by: (a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the Underwriters to the Company under this Agreement, which (without limitation) may include and result in any of the following or some combination thereof: (i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; (ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the Underwriters or another person (and the issue to or conferral on the Company of such shares, securities or obligations); (iii) the cancellation of the BRRD Liability; and/or (iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and (b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
As used in this Section 14, “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule in relation to the relevant Bail-in Legislation; “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; “BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised; “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at https://www.lma.eu.com/documents-guidelines/eu-bail-legislation-schedule; and “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Underwriters.
15. Contractual Recognition of Bail-In (UK). Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding among the Underwriters and the Company, the Company acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant United Kingdom (“UK”) resolution authority, and acknowledges, accepts and agrees to be bound by: (a) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of the Underwriters to the Company under this Agreement, which (without limitation) may include and result in any of the following or some combination thereof: (i) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; (ii) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the Underwriters or another person (and the issue to or conferral on the Company of such shares, securities or obligations); (iii) the cancellation of the UK Bail-in Liability; and/or (iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and (b) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority.
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As used in this Section 15, “UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings); “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised; and “UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
16. Counterparts; Electronic Signatures. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon 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.
17. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred to in Section 8 hereof, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any other purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.
18. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
19. 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.
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20. Applicable Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
(a) Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth in Schedule I shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
21. 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 hereto 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 Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company with respect to any sum due from it to any Underwriter or any person controlling any 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 agrees, 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 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. Any amounts payable by the Company or any Underwriter under this Section 21 shall be paid to the applicable Underwriter(s) or the Company (as applicable) as promptly as reasonably practicable.
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22. Agreement Among Underwriters. The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Market Association Agreement Among Managers Version 1/New York Law Schedule (the “Agreement Among Managers”) as amended in the manner set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters, “Lead Manager” means the Representatives, “Settlement Lead Manager” means Morgan Stanley & Co. International plc (the “Settlement Lead Manager”), “Stabilizing Manager” means Citigroup Global Markets Limited and “Subscription Agreement” means this Agreement. Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 10 of this Agreement. In the event of any conflict between the provisions of the Agreement Among Managers and this Agreement, the terms of this Agreement shall prevail.
Each Underwriter agrees to pay the portion of the expenses represented by such Underwriter’s pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name in Schedule II bears to the aggregate principal amount of Securities set forth opposite the names of all Underwriters) of the Securities (with respect to each Underwriter, the “Pro Rata Expenses”). Notwithstanding anything contained in the International Capital Market Association Primary Market Handbook, each Underwriter hereby agrees that the Settlement Lead Manager may allocate the Pro Rata Expenses to the account of such Underwriter for settlement of accounts (including payment of such Underwriter’s fees by the Settlement Lead Manager) as soon as practicable but in any case no later than 90 days following the Closing Date.
23. Manufacturer Acknowledgement (UK). Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules: (a) each of Morgan Stanley & Co. International plc and Citigroup Global Markets Limited (each, a “UK Manufacturer” and, together, the “UK Manufacturers”) acknowledges to each other UK Manufacturer that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Time of Sale Prospectus, the Prospectus and announcements in connection with the Securities; and (b) the Underwriters (other than the UK Manufacturers) and the Company note the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the UK Manufacturers and the related information set out in the Time of Sale Prospectus, the Prospectus and any announcements in connection with the Securities.
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24. Stabilization. The Company hereby authorizes the Stabilizing Manager to make adequate public disclosure regarding stabilization of the information required in relation to such stabilization by Commission Delegated Regulation (EU) 2016/1052 including as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018, as amended. The Stabilizing Manager for its own account may, to the extent permitted by applicable laws and regulations, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Company and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Company to issue in excess of the aggregate principal amount of Securities specified in Schedule I hereto. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and regulations.
25. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
26. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives at the addresses set forth in Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set forth in Schedule I hereto.
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| Very truly yours, | ||
| Meta Platforms, Inc. | ||
| By: | /s/ Todd Heysse | |
| Name: | Todd Heysse | |
| Title: | Vice President, Treasury and Corporate Finance | |
| Accepted as of the date hereof
Citigroup Global Markets Limited Morgan Stanley & Co. International plc
Acting severally on behalf of themselves and the several Underwriters named in Schedule II hereto
| ||
| Citigroup Global Markets Limited | ||
| By: | /s/ Paula Clarke | |
| Name: | Paula Clarke | |
| Title: | Delegated Signatory | |
| Morgan Stanley & Co. International plc | ||
| By: | /s/ Kathryn McArdle | |
| Name: | Kathryn McArdle | |
| Title: | Executive Director | |
[Signature Page to Underwriting Agreement]
Accepted as of the date hereof
Goldman Sachs & Co. LLC
Merrill Lynch International
J.P. Morgan Securities plc
Société Générale
Acting severally on behalf of themselves
| Goldman Sachs & Co. LLC | ||
| By: | /s/ Kevin Dirkse | |
| Name: | Kevin Dirkse | |
| Title: | Managing Director | |
| Merrill Lynch International | ||
| By: | /s/ Angus Reynolds | |
| Name: | Angus Reynolds | |
| Title: | Managing Director | |
| J.P. Morgan Securities plc | ||
| By: | /s/ Robert Chambers | |
| Name: | Robert Chambers | |
| Title: | Managing Director | |
| Société Générale | ||
| By: | /s/ Sabina Ceddia | |
| Name: | Sabina Ceddia | |
| Title: | Director | |
[Signature Page to Underwriting Agreement]
SCHEDULE I
| Representatives: | Citigroup Global Markets Limited and Morgan Stanley & Co. International plc | |
| Indenture: | Indenture dated as of August 9, 2022 between the Company and the Trustee, as supplemented by the seventh supplemental indenture, to be dated as of November 12, 2026, between the Company and the Trustee. | |
| Trustee and Registrar and Transfer Agent: | U.S. Bank Trust Company, National Association | |
| Paying Agent: | U.S. Bank Europe DAC, UK Branch | |
| Registration Statement File No.: | 333-295425 | |
| Time of Sale Prospectus: | 1. Prospectus dated April 30, 2026 relating to the Shelf Securities
2. the preliminary prospectus supplement dated November 4, 2026 relating to the Securities
3. pricing term sheet dated November 4, 2026 setting forth the terms of the Securities | |
| Securities to be purchased: | 4.300% Senior Notes due 2031 (the “2031 Notes”)
4.650% Senior Notes due 2033 (the “2033 Notes”)
4.900% Senior Notes due 2035 (the “2035 Notes”)
5.400% Senior Notes due 2038 (the “2038 Notes”)
6.050% Senior Notes due 2044 (the “2044 Notes”)
6.400% Senior Notes due 2065 (the “2065 Notes”) | |
I-1
| Aggregate Principal Amount: | 2031 Notes
€1,750,000,000
2033 Notes
€1,250,000,000
2035 Notes
€1,000,000,000
2038 Notes
€1,750,000,000
2044 Notes
€1,750,000,000
2065 Notes
€1,500,000,000 | |
| Purchase Price: | 2031 Notes
99.814% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2026
2033 Notes
99.857% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2026
2035 Notes
99.653% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2026
2038 Notes
99.574% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2026 | |
I-2
| 2044 Notes
99.688% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2026
2065 Notes
99.046% of the principal amount of the Securities, plus accrued interest, if any, from November 12, 2026 | ||
| Maturity: | 2031 Notes
February 15, 2031
2033 Notes
February 15, 2033
2035 Notes
February 15, 2035
2038 Notes
November 15, 2038
2044 Notes
November 15, 2044
2065 Notes
February 15, 2065 | |
I-3
| Interest Rate: | 2031 Notes
4.300% per annum, accruing from November 12, 2026
2033 Notes
4.650% per annum, accruing from November 12, 2026
2035 Notes
4.900% per annum, accruing from November 12, 2026
2038 Notes
5.400% per annum, accruing from November 12, 2026
2044 Notes
6.050% per annum, accruing from November 12, 2026
2065 Notes
6.400% per annum, accruing from November 12, 2026 | |
| Interest Payment Date: | 2031 Notes, 2033 Notes, 2035 Notes and 2065 Notes: Annually in arrears on February 15 of each year, commencing on February 15, 2027
2038 Notes and 2044 Notes: Annually in arrears on November 15 of each year, commencing on November 15, 2027 | |
| Interest Payment Record Date: | Close of the calendar day (whether or not a business day) immediately preceding the Interest Payment Date. | |
| Closing Date and Time: | November 12, 2026 10:00 a.m. (London time) | |
| Closing Location: | Skadden, Arps, Slate, Meagher & Flom LLP One Manhattan West New York, New York 10001
| |
| Address for Notices to Underwriters: |
Citigroup Global Markets Limited at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, Attention: Syndicate Desk
Morgan Stanley & Co. International plc at 25 Cabot Square, Canary Wharf, London E14 4QA, Attention: Head of Transaction Management Group, Global Capital Markets | |
I-4
| Address for Notices to the Company: | Meta Platforms, Inc., 1 Meta Way, Menlo Park, California 94025, Attention: Corporate Secretary (a copy of which shall also be sent via email to: CorporateSecretary@meta.com), with a copy to Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, Attention: Michael Kaplan, Hillary A. Coleman |
I-5
SCHEDULE II
| Underwriter |
Principal Amount of 2031 Notes To Be Purchased |
Principal Amount of 2033 Notes To Be Purchased |
Principal Amount of 2035 Notes To Be Purchased |
Principal Amount of 2038 Notes To Be Purchased |
Principal Amount of 2044 Notes To Be Purchased |
Principal Amount of 2065 Notes To Be Purchased |
||||||||||||||||||
| Citigroup Global Markets Limited |
€ | 568,750,000 | € | 406,250,000 | € | 325,000,000 | € | 568,750,000 | € | 568,750,000 | € | 487,500,000 | ||||||||||||
| Morgan Stanley & Co. International plc |
€ | 568,750,000 | € | 406,250,000 | € | 325,000,000 | € | 568,750,000 | € | 568,750,000 | € | 487,500,000 | ||||||||||||
| Goldman Sachs & Co. LLC |
€ | 262,500,000 | € | 187,500,000 | € | 150,000,000 | € | 262,500,000 | € | 262,500,000 | € | 225,000,000 | ||||||||||||
| Merrill Lynch International |
€ | 131,250,000 | € | 93,750,000 | € | 75,000,000 | € | 131,250,000 | € | 131,250,000 | € | 112,500,000 | ||||||||||||
| J.P. Morgan Securities plc |
€ | 131,250,000 | € | 93,750,000 | € | 75,000,000 | € | 131,250,000 | € | 131,250,000 | € | 112,500,000 | ||||||||||||
| Société Générale |
€ | 87,500,000 | € | 62,500,000 | € | 50,000,000 | € | 87,500,000 | € | 87,500,000 | € | 75,000,000 | ||||||||||||
| Total |
€ | 1,750,000,000 | € | 1,250,000,000 | € | 1,000,000,000 | € | 1,750,000,000 | € | 1,750,000,000 | € | 1,500,000,000 | ||||||||||||
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Exhibit 4.1
META PLATFORMS, INC.
4.300% Senior Notes due 2031
4.650% Senior Notes due 2033
4.900% Senior Notes due 2035
5.400% Senior Notes due 2038
6.050% Senior Notes due 2044
6.400% Senior Notes due 2065
Seventh Supplemental Indenture
Dated as of November 12, 2026
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
TABLE OF CONTENTS
| PAGE | ||||||
| ARTICLE ONE CERTAIN DEFINITIONS | 2 | |||||
| ARTICLE TWO SCOPE OF SUPPLEMENTAL INDENTURE; GENERAL | 4 | |||||
| Section 2.01 |
Scope of Supplemental Indenture |
4 | ||||
| Section 2.02 |
Terms of the Notes |
5 | ||||
| Section 2.03 |
Currency of Notes |
12 | ||||
| Section 2.04 |
Registrar and Paying Agent |
13 | ||||
| Section 2.05 |
Transfer and Exchange |
13 | ||||
| Section 2.06 |
Paying Agent |
14 | ||||
| Section 2.07 |
Money for Payments |
14 | ||||
| Section 2.08 |
Specified Foreign Entity |
14 | ||||
| Section 2.09 |
Notices |
15 | ||||
| ARTICLE THREE REDEMPTION | 15 | |||||
| Section 3.01 |
Redemption at the Option of the Company |
15 | ||||
| Section 3.02 |
Redemption for Tax Reasons |
19 | ||||
| ARTICLE FOUR CERTAIN COVENANTS OF THE COMPANY | 19 | |||||
| Section 4.01 |
Payment of Additional Amounts |
19 | ||||
| ARTICLE FIVE MISCELLANEOUS | 22 | |||||
| Section 5.01 |
Governing Laws; Waiver of Jury Trial |
22 | ||||
| Section 5.02 |
No Adverse Interpretation of Other Agreements |
23 | ||||
| Section 5.03 |
Successors and Assigns |
23 | ||||
| Section 5.04 |
Severability |
23 | ||||
| Section 5.05 |
Force Majeure |
23 | ||||
| Section 5.06 |
Table of Contents, Headings, Etc. |
23 | ||||
| Section 5.07 |
Counterparts |
24 | ||||
| Section 5.08 |
Confirmation of Indenture |
24 | ||||
| Section 5.09 |
Trustee Disclaimer |
24 | ||||
| EXHIBIT A Form of 2031 Note EXHIBIT B Form of 2033 Note EXHIBIT C Form of 2035 Note EXHIBIT D Form of 2038 Note EXHIBIT E Form of 2044 Note EXHIBIT F Form of 2065 Note |
Ex-A-1 | |||||
| Ex-B-1 | ||||||
| Ex-C-1 | ||||||
| Ex-D-1 | ||||||
| Ex-E-1 | ||||||
| Ex-F-1 | ||||||
i
Seventh SUPPLEMENTAL INDENTURE dated as of November 12, 2026 (this “Supplemental Indenture”), to the Indenture dated as of August 9, 2022 (the “Base Indenture” and, together with the Supplemental Indenture, the “Indenture”), by and between META PLATFORMS, INC., a Delaware corporation (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as trustee (the “Trustee”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined herein):
WHEREAS, the Company and the Trustee have duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of the Company’s debentures, notes, or other debt instruments to be issued in one or more Series as in the Base Indenture provided (as defined therein, “Securities”);
WHEREAS, the Company desires and has requested the Trustee to join in the execution and delivery of this Supplemental Indenture in order to establish and provide for the issuance by the Company of six Series of Securities designated as its 4.300% Senior Notes due 2031 (the “2031 Notes”), its 4.650% Senior Notes due 2033 (the “2033 Notes”), its 4.900% Senior Notes due 2035 (the “2035 Notes”), its 5.400% Senior Notes due 2038 (the “2038 Notes”), its 6.050% Senior Notes due 2044 (the “2044 Notes”), and its 6.400% Senior Notes due 2065 (the “2065 Notes” and, together with the 2031 Notes, 2033 Notes, 2035 Notes, 2038 Notes, and 2044 Notes, the “Initial Notes”), substantially in the forms attached hereto as Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, and Exhibit F respectively, on the terms set forth herein, issued therefor as provided herein (the Initial Notes and any Additional Notes (as defined herein), are together referred to herein as the “Notes”);
WHEREAS, Section 2.01 of the Base Indenture provides that a supplemental indenture may be entered into by the Company and the Trustee for such purpose, without the consent of Holders, provided certain conditions are met;
WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee, for the equal and ratable benefit of the Holders, that the Base Indenture is supplemented and amended, to the extent expressed herein, as follows:
ARTICLE ONE
CERTAIN DEFINITIONS
The following terms have the meanings set forth below in this Supplemental Indenture. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Base Indenture. To the extent terms defined herein differ from the Base Indenture the terms defined herein will govern.
“Actual/Actual (ICMA)” means the payment convention defined as such in the rulebook of the International Capital Market Association.
“Additional Notes” means any Notes of any Series issued under the Indenture having the same terms in all respects as the Initial Notes of such Series, or in all respects except with respect to interest paid or payable on or prior to the first interest payment date after the issuance of such Additional Notes.
“Agency Agreement” means that certain agency agreement, dated as of the date hereof, among the Company, the Paying Agent, the Trustee, and U.S. Bank Trust Company, National Association, as Registrar and Transfer Agent.
“Business Day” means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates.
“Clearstream” means Clearstream Banking, S.A., a société anonyme, or any successor securities clearing agency.
“Comparable Government Bond Rate” means, with respect to any redemption date for a series of Notes, the rate per annum equal to the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, calculated in accordance with customary financial practice in pricing new issues of comparable corporate debt securities paying interest on an annual basis (ACTUAL/ACTUAL (ICMA)) of the Comparable Government Bond (as defined below), assuming a price for the Comparable Government Bond (expressed as a percentage of its principal amount) equal to the Comparable Government Bond Price for such redemption date.
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“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, the German government bond (Bundesanleihe) selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities of a comparable maturity to the remaining term of the applicable series of Notes.
“Comparable Government Bond Price” means, with respect to any redemption date for a series of Notes, (1) the arithmetic average of the Reference Government Bond Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Government Bond Dealer Quotations, or (2) if we obtain fewer than four such Reference Government Bond Dealer Quotations, the arithmetic average of all such quotations.
“Company” has the meaning provided in the Base Indenture.
“Depositary” means U.S. Bank Europe DAC, as common depositary for Euroclear and Clearstream, or any successor.
“dollar” and “$” mean the lawful currency of the United States of America.
“euro” and “€” mean the single currency introduced at the third stage of the European Economic and Monetary Union pursuant to the Treaty on the Functioning of the European Union, as amended from time to time.
“Euroclear” means Euroclear Bank S.A./N.V., or any successor securities clearing agency.
“Holder” means the Person in whose name a Note is registered in the books of the Registrar for the Notes.
“Indenture” has the meaning provided in the Preamble.
“Independent Investment Banker” means one of the Reference Government Bond Dealers selected by the Company.
“Initial Notes” means the Notes of each Series issued on the Issue Date and any Notes issued in replacement thereof.
“Issue Date” means the date on which the Initial Notes are initially issued under the Indenture on the date hereof.
“Notes” has the meaning provided in the Recitals.
“Par Call Date” means the 2031 Par Call Date, the 2033 Par Call Date, the 2035 Par Call Date, the 2038 Par Call Date, the 2044 Par Call Date, or the 2065 Par Call Date, as applicable.
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“Paying Agent” has the meaning provided in Section 2.04 hereof.
“Redemption Date” means, with respect to any Note of any Series to be redeemed, the date fixed for such redemption by or pursuant to this Supplemental Indenture.
“Reference Government Bond Dealer” means (i) each of Citigroup Global Markets Limited, Morgan Stanley & Co. International plc, Goldman Sachs & Co. LLC and Société Générale or any of their affiliates that are primary European government securities dealers, and their respective successors; provided that if any of the foregoing or any of their affiliates shall cease to be a primary European government securities dealer (“Primary Dealer”), the Company shall substitute therefor another Primary Dealer and (ii) two other Primary Dealers selected by the Company.
“Reference Government Bond Dealer Quotations” means, with respect to each Reference Government Bond Dealer and Redemption Date for a series of Notes, the arithmetic average, as determined by the Company, of the bid and asked prices for the Comparable Government Bond (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Government Bond Dealer at 11:00 a.m., Central European Time (CET), on the third Business Day preceding such redemption date.
“Registrar” has the meaning set forth in Section 2.04.
“Supplemental Indenture” has the meaning provided in the Preamble.
“Tax Jurisdiction” has the meaning set forth in Section 3.02.
“Tax Opinion” has the meaning set forth in Section 3.02. A Tax Opinion shall be deemed to be an Opinion of Counsel under the Base Indenture, including, without limitation, for purposes of Section 11.04 of the Base Indenture.
“Trustee” has the meaning provided in the Preamble.
ARTICLE TWO
SCOPE OF SUPPLEMENTAL INDENTURE; GENERAL
Section 2.01 Scope of Supplemental Indenture.
The changes, modifications, and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes, which shall not be limited in aggregate principal amount, and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications, and supplements. References to “CUSIP” numbers in the Base Indenture, including, but not limited to, Section 2.16 of the Base Indenture, shall be deemed replaced by “ISIN” and/or “Common Code” numbers, as applicable.
4
Section 2.02 Terms of the Notes.
(a) Pursuant to this Supplemental Indenture, there is hereby created and designated six Series of Securities under the Base Indenture entitled the “4.300% Senior Notes due 2031,” “4.650% Senior Notes due 2033,” “4.900% Senior Notes due 2035,” “5.400% Senior Notes due 2038,” “6.050% Senior Notes due 2044,” and “6.400% Senior Notes due 2065”.
(b) The 2031 Notes shall be in the form of Exhibit A hereto (the “Specimen 2031 Note”), which is hereby incorporated into this Supplemental Indenture by reference. The terms of the 2031 Notes shall be as follows:
(i) The 2031 Notes are to be issued initially in an aggregate principal amount of €1,750,000,000; provided however, that the aggregate principal amount of the 2031 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2031 Notes.
(ii) Principal and interest on the 2031 Notes, including payments made upon any redemption or repurchase of the 2031 Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
(iii) The 2031 Notes will mature on February 15, 2031.
(iv) The 2031 Notes will bear interest at a rate of 4.300% per annum.
(v) The date from which interest shall accrue, the payment dates on which interest shall be payable, and the regular record date for the interest payable on any payment date will be as set forth in the Specimen 2031 Note.
(vi) Principal and interest on the 2031 Notes are payable at the corporate trust office of the Paying Agent in London, England (the “Place of Payment”), except as otherwise provided in the Specimen 2031 Note.
(vii) The 2031 Notes shall be redeemable at the redemption prices and on the terms set forth in Article 3 of this Supplemental Indenture. Except as otherwise provided in Article 3 of this Supplemental Indenture, redemption of the 2031 Notes shall be made in accordance with the terms of Article 3 of the Base Indenture.
(viii) The 2031 Notes will not be subject to any sinking fund.
(ix) The 2031 Notes are issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.
(x) The 2031 Notes are to be issued initially as Registered Global Securities and will be deposited with the Depositary and registered in the name of the nominee of the Depositary for, and in respect of interests held through, Clearstream and Euroclear. Beneficial owners of interests in the 2031 Notes may exchange such interests in accordance with the Indenture and the terms of the 2031 Notes.
5
(xi) The “Depositary” with respect to the 2031 Notes will initially be U.S. Bank Europe DAC.
(xii) Interest on the 2031 Notes will be computed and paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2031 Notes (or from and including November 12, 2026, if no interest has been paid on the 2031 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
(xiii) The terms of the 2031 Notes shall include such other terms as are set forth in the Specimen 2031 Note and in the Indenture. To the extent the terms of the Indenture and the Specimen 2031 Note are inconsistent, the terms of the Specimen 2031 Note will govern.
(c) The 2033 Notes shall be in the form of Exhibit B hereto (the “Specimen 2033 Note”), which is hereby incorporated into this Supplemental Indenture by reference. The terms of the 2033 Notes shall be as follows:
(i) The 2033 Notes are to be issued initially in an aggregate principal amount of €1,250,000,000; provided however, that the aggregate principal amount of the 2033 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2033 Notes.
(ii) Principal and interest on the 2033 Notes, including payments made upon any redemption or repurchase of the 2033 Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
(iii) The 2033 Notes will mature on February 15, 2033.
(iv) The 2033 Notes will bear interest at a rate of 4.650% per annum.
(v) The date from which interest shall accrue, the payment dates on which interest shall be payable, and the regular record date for the interest payable on any payment date will be as set forth in the Specimen 2033 Note.
(vi) Principal and interest on the 2033 Notes are payable at the Place of Payment, except as otherwise provided in the Specimen 2033 Note.
(vii) The 2033 Notes shall be redeemable at the redemption prices and on the terms set forth in Article 3 of this Supplemental Indenture. Except as otherwise provided in Article 3 of this Supplemental Indenture, redemption of the 2033 Notes shall be made in accordance with the terms of Article 3 of the Base Indenture.
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(viii) The 2033 Notes will not be subject to any sinking fund.
(ix) The 2033 Notes are issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.
(x) The 2033 Notes are to be issued initially as Registered Global Securities and will be deposited with the Depositary and registered in the name of the nominee of the Depositary for, and in respect of interests held through, Clearstream and Euroclear. Beneficial owners of interests in the 2033 Notes may exchange such interests in accordance with the Indenture and the terms of the 2033 Notes.
(xi) The “Depositary” with respect to the 2033 Notes will initially be U.S. Bank Europe DAC.
(xii) Interest on the 2033 Notes will be computed and paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2033 Notes (or from and including November 12, 2026, if no interest has been paid on the 2033 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
(xiii) The terms of the 2033 Notes shall include such other terms as are set forth in the Specimen 2033 Note and in the Indenture. To the extent the terms of the Indenture and the Specimen 2033 Note are inconsistent, the terms of the Specimen 2033 Note will govern.
(d) The 2035 Notes shall be in the form of Exhibit C hereto (the “Specimen 2035 Note”), which is hereby incorporated into this Supplemental Indenture by reference. The terms of the 2035 Notes shall be as follows:
(i) The 2035 Notes are to be issued initially in an aggregate principal amount of €1,000,000,000; provided however, that the aggregate principal amount of the 2035 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2035 Notes.
(ii) Principal and interest on the 2035 Notes, including payments made upon any redemption or repurchase of the 2035 Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
(iii) The 2035 Notes will mature on February 15, 2035.
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(iv) The 2035 Notes will bear interest at a rate of 4.900% per annum.
(v) The date from which interest shall accrue, the payment dates on which interest shall be payable, and the regular record date for the interest payable on any payment date will be as set forth in the Specimen 2035 Note.
(vi) Principal and interest on the 2035 Notes are payable at the Place of Payment, except as otherwise provided in the Specimen 2035 Note.
(vii) The 2035 Notes shall be redeemable at the redemption prices and on the terms set forth in Article 3 of this Supplemental Indenture. Except as otherwise provided in Article 3 of this Supplemental Indenture, redemption of the 2035 Notes shall be made in accordance with the terms of Article 3 of the Base Indenture.
(viii) The 2035 Notes will not be subject to any sinking fund.
(ix) The 2035 Notes are issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.
(x) The 2035 Notes are to be issued initially as Registered Global Securities and will be deposited with the Depositary and registered in the name of the nominee of the Depositary for, and in respect of interests held through, Clearstream and Euroclear. Beneficial owners of interests in the 2035 Notes may exchange such interests in accordance with the Indenture and the terms of the 2035 Notes.
(xi) The “Depositary” with respect to the 2035 Notes will initially be U.S. Bank Europe DAC.
(xii) Interest on the 2035 Notes will be computed and paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2035 Notes (or from and including November 12, 2026, if no interest has been paid on the 2035 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
(xiii) The terms of the 2035 Notes shall include such other terms as are set forth in the Specimen 2035 Note and in the Indenture. To the extent the terms of the Indenture and the Specimen 2035 Note are inconsistent, the terms of the Specimen 2035 Note will govern.
8
(e) The 2038 Notes shall be in the form of Exhibit D hereto (the “Specimen 2038 Note”), which is hereby incorporated into this Supplemental Indenture by reference. The terms of the 2038 Notes shall be as follows:
(i) The 2038 Notes are to be issued initially in an aggregate principal amount of €1,750,000,000; provided however, that the aggregate principal amount of the 2038 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2038 Notes.
(ii) Principal and interest on the 2038 Notes, including payments made upon any redemption or repurchase of the 2038 Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
(iii) The 2038 Notes will mature on November 15, 2038.
(iv) The 2038 Notes will bear interest at a rate of 5.400% per annum.
(v) The date from which interest shall accrue, the payment dates on which interest shall be payable, and the regular record date for the interest payable on any payment date will be as set forth in the Specimen 2038 Note.
(vi) Principal and interest on the 2038 Notes are payable at the Place of Payment, except as otherwise provided in the Specimen 2038 Note.
(vii) The 2038 Notes shall be redeemable at the redemption prices and on the terms set forth in Article 3 of this Supplemental Indenture. Except as otherwise provided in Article 3 of this Supplemental Indenture, redemption of the 2038 Notes shall be made in accordance with the terms of Article 3 of the Base Indenture.
(viii) The 2038 Notes will not be subject to any sinking fund.
(ix) The 2038 Notes are issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.
(x) The 2038 Notes are to be issued initially as Registered Global Securities and will be deposited with the Depositary and registered in the name of the nominee of the Depositary for, and in respect of interests held through, Clearstream and Euroclear. Beneficial owners of interests in the 2038 Notes may exchange such interests in accordance with the Indenture and the terms of the 2038 Notes.
(xi) The “Depositary” with respect to the 2038 Notes will initially be U.S. Bank Europe DAC.
(xii) Interest on the 2038 Notes will be computed and paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2038 Notes (or from and including November 12, 2026, if no interest has been paid on the 2038 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
9
(xiii) The terms of the 2038 Notes shall include such other terms as are set forth in the Specimen 2038 Note and in the Indenture. To the extent the terms of the Indenture and the Specimen 2038 Note are inconsistent, the terms of the Specimen 2038 Note will govern.
(f) The 2044 Notes shall be in the form of Exhibit E hereto (the “Specimen 2044 Note”), which is hereby incorporated into this Supplemental Indenture by reference. The terms of the 2044 Notes shall be as follows:
(i) The 2044 Notes are to be issued initially in an aggregate principal amount of €1,750,000,000; provided however, that the aggregate principal amount of the 2044 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2044 Notes.
(ii) Principal and interest on the 2044 Notes, including payments made upon any redemption or repurchase of the 2044 Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
(iii) The 2044 Notes will mature on November 15, 2044.
(iv) The 2044 Notes will bear interest at a rate of 6.050% per annum.
(v) The date from which interest shall accrue, the payment dates on which interest shall be payable, and the regular record date for the interest payable on any payment date will be as set forth in the Specimen 2044 Note.
(vi) Principal and interest on the 2044 Notes are payable at the Place of Payment, except as otherwise provided in the Specimen 2044 Note.
(vii) The 2044 Notes shall be redeemable at the redemption prices and on the terms set forth in Article 3 of this Supplemental Indenture. Except as otherwise provided in Article 3 of this Supplemental Indenture, redemption of the 2044 Notes shall be made in accordance with the terms of Article 3 of the Base Indenture.
(viii) The 2044 Notes will not be subject to any sinking fund.
(ix) The 2044 Notes are issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.
(x) The 2044 Notes are to be issued initially as Registered Global Securities and will be deposited with the Depositary and registered in the name of the nominee of the Depositary for, and in respect of interests held through, Clearstream and Euroclear. Beneficial owners of interests in the 2044 Notes may exchange such interests in accordance with the Indenture and the terms of the 2044 Notes.
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(xi) The “Depositary” with respect to the 2044 Notes will initially be U.S. Bank Europe DAC.
(xii) Interest on the 2044 Notes will be computed and paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2044 Notes (or from and including November 12, 2026, if no interest has been paid on the 2044 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
(xiii) The terms of the 2044 Notes shall include such other terms as are set forth in the Specimen 2044 Note and in the Indenture. To the extent the terms of the Indenture and the Specimen 2044 Note are inconsistent, the terms of the Specimen 2044 Note will govern.
(g) The 2065 Notes shall be in the form of Exhibit F hereto (the “Specimen 2065 Note”), which is hereby incorporated into this Supplemental Indenture by reference. The terms of the 2065 Notes shall be as follows:
(i) The 2065 Notes are to be issued initially in an aggregate principal amount of €1,500,000,000; provided however, that the aggregate principal amount of the 2065 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2065 Notes.
(ii) Principal and interest on the 2065 Notes, including payments made upon any redemption or repurchase of the 2065 Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
(iii) The 2065 Notes will mature on February 15, 2065.
(iv) The 2065 Notes will bear interest at a rate of 6.400% per annum.
(v) The date from which interest shall accrue, the payment dates on which interest shall be payable, and the regular record date for the interest payable on any payment date will be as set forth in the Specimen 2065 Note.
(vi) Principal and interest on the 2065 Notes are payable at the Place of Payment, except as otherwise provided in the Specimen 2065 Note.
(vii) The 2065 Notes shall be redeemable at the redemption prices and on the terms set forth in Article 3 of this Supplemental Indenture. Except as otherwise provided in Article 3 of this Supplemental Indenture, redemption of the 2065 Notes shall be made in accordance with the terms of Article 3 of the Base Indenture.
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(viii) The 2065 Notes will not be subject to any sinking fund.
(ix) The 2065 Notes are issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.
(x) The 2065 Notes are to be issued initially as Registered Global Securities and will be deposited with the Depositary and registered in the name of the nominee of the Depositary for, and in respect of interests held through, Clearstream and Euroclear. Beneficial owners of interests in the 2065 Notes may exchange such interests in accordance with the Indenture and the terms of the 2065 Notes.
(xi) The “Depositary” with respect to the 2065 Notes will initially be U.S. Bank Europe DAC.
(xii) Interest on the 2065 Notes will be computed and paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2065 Notes (or from and including November 12, 2026, if no interest has been paid on the 2065 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
(xiii) The terms of the 2065 Notes shall include such other terms as are set forth in the Specimen 2065 Note and in the Indenture. To the extent the terms of the Indenture and the Specimen 2065 Note are inconsistent, the terms of the Specimen 2065 Note will govern.
Section 2.03 Currency of Notes
The Notes shall be denominated in euros, and all payments of interest on, principal of, and any redemption price for, or Additional Amounts (as defined hereafter), if any, with respect to the Notes, will be payable in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control (including the dissolution of the European Monetary Union) or if the euro is no longer being used by the then Member States of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in U.S. dollars until the euro is again available to the Company or so used. The amount payable on any date in euros will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent U.S. dollar/euro exchange rate published in The Wall Street Journal on or prior to
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the second Business Day prior to the relevant payment date or, in the event The Wall Street Journal has not published such exchange rate, the rate will be determined by the Company in its sole discretion on the basis of the most recently available market U.S. dollar/euro exchange rate. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars pursuant to this Section 2.03 will not constitute an Event of Default under the Notes or the Indenture.
Section 2.04 Registrar and Paying Agent.
(a) The Company initially appoints U.S. Bank Europe DAC, UK Branch to act as the paying agent with respect to the Notes (together with its successors and assigns, the “Paying Agent”), and the Trustee to act as the Registrar with respect to the Notes (together with its successors and assigns, the “Registrar”) and as transfer agent with respect to the Notes (together with its successors and assigns, the “Transfer Agent”), in each case in accordance with the terms of the Agency Agreement and the Indenture.
(b) The Company may change the Paying Agent, Transfer Agent, or Registrar without prior notice to the Holders.
(c) The Company designates the office of the Paying Agent at 125 Old Broad Street, Fifth Floor, London EC2N 1AR, United Kingdom as an agency where the Notes may be presented for payment and the office of the Registrar at 1 California Street, Suite 1000, San Francisco, California 94111 as an agency where the Notes may be presented for exchange or registration of transfer, in each case, as provided for in the Indenture.
Section 2.05 Transfer and Exchange.
Section 2.14 of the Base Indenture is hereby amended and restated in its entirety to read as follows:
(a) Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Registered Global Securities and the Depositary for such Registered Global Security or Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.07 of the Indenture and in addition thereto, any Registered Global Security shall be exchangeable pursuant to Section 2.07 of the Indenture for Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Global Security and the Company fails to appoint a successor Depositary within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Registered Global Security shall be so exchangeable. Any Registered Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Registered Global Security with like tenor and terms.
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Except as provided in this Section 2.14(b), a Registered Global Security may not be transferred except as a whole by the Depositary with respect to such Registered Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.
(c) Legend. Any Registered Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security is a Registered Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a Person other than the Depositary or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.”
(d) Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
(e) Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.02, payment of the principal of and interest, if any, on any Registered Global Security shall be made to the Holder thereof.
(f) Consents, Declaration and Directions. Except as provided in Section 2.14(d), the Company, the Trustee and any Agent may treat a Person as the Holder of such principal amount of outstanding Securities of such Series represented by a Registered Global Security as shall be specified in a written statement of the Depositary with respect to such Registered Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.
Section 2.06 Paying Agent.
U.S. Bank Europe DAC, UK Branch has been appointed by the Company as Paying Agent for the Notes pursuant to the Agency Agreement. In acting under the Indenture or with respect to the Notes, the Paying Agent shall be entitled to all rights, benefits, protections, indemnities and immunities afforded to it pursuant to the Agency Agreement.
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Section 2.07 Money for Payments.
The Company shall irrevocably deposit with the Paying Agent in immediately available funds, a sum sufficient to pay the principal of, and premium or redemption price, if any, and interest on the Notes of any series becoming due as provided by the provisions of the Agency Agreement. The Company shall promptly notify the Trustee of its action or failure so to act.
Section 2.08 Specified Foreign Entity
Each Holder and beneficial owner, by its acquisition of the Notes (or an interest therein), shall be deemed to have represented, warranted and agreed that it is not a “specified foreign entity” as defined in Section 7701(a)(51)(B) of the Internal Revenue Code of 1986, as amended.
Section 2.09 Notices
For so long as any Notes are represented by Registered Global Securities, references in the last paragraph of Section 11.02 of the Base Indenture to “the procedures of the Depositary” shall mean the applicable procedures of Euroclear and Clearstream as in effect from time to time, notices to Holders shall be given by delivery to Euroclear and Clearstream, and shall be deemed given on the date of such delivery.
ARTICLE THREE
REDEMPTION
The following provision shall apply with respect to the Notes:
Section 3.01 Redemption at the Option of the Company.
(a) The Company may redeem the 2031 Notes, at its option, in whole or in part, at any time and from time to time prior to January 15, 2031 (one month prior to the maturity date of the 2031 Notes) (the “2031 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2031 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2031 Par Call Date (assuming the 2031 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 20 basis points, and
(ii) 100% of the principal amount of the 2031 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
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(b) The Company may redeem the 2031 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2031 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2031 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2031 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(c) The Company may redeem the 2033 Notes, at its option, in whole or in part, at any time and from time to time prior to December 15, 2032 (two months prior to the maturity date of the 2033 Notes) (the “2033 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2033 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2033 Par Call Date (assuming the 2033 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 25 basis points, and
(ii) 100% of the principal amount of the 2033 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(d) The Company may redeem the 2033 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2033 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2033 Note must be in a minimum principal amount of €100,000, 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 excluding, the Redemption Date.
(e) The Company may redeem the 2035 Notes, at its option, in whole or in part, at any time and from time to time prior to November 15, 2034 (three months prior to the maturity date of the 2035 Notes) (the “2035 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2035 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2035 Par Call Date (assuming the 2035 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 30 basis points, and
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(ii) 100% of the principal amount of the 2035 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(f) The Company may redeem the 2035 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2035 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2035 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2035 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(g) The Company may redeem the 2038 Notes, at its option, in whole or in part, at any time and from time to time prior to August 15, 2038 (three months prior to the maturity date of the 2038 Notes) (the “2038 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2038 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2038 Par Call Date (assuming the 2038 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 35 basis points, and
(ii) 100% of the principal amount of the 2038 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(h) The Company may redeem the 2038 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2038 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2038 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2038 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(i) The Company may redeem the 2044 Notes, at its option, in whole or in part, at any time and from time to time prior to May 15, 2044 (six months prior to the maturity date of the 2044 Notes) (the “2044 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2044 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2044 Par Call Date (assuming the 2044 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 40 basis points, and
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(ii) 100% of the principal amount of the 2044 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(j) The Company may redeem the 2044 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2044 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2044 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2044 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(k) The Company may redeem the 2065 Notes, at its option, in whole or in part, at any time and from time to time prior to August 15, 2064 (six months prior to the maturity date of the 2065 Notes) (the “2065 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2065 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2065 Par Call Date (assuming the 2065 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 45 basis points, and
(ii) 100% of the principal amount of the 2065 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(l) The Company may redeem the 2065 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2065 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2065 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2065 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(m) With respect to any redemption of the Notes of any Series occurring prior to the applicable Par Call Date, the Company shall give the Trustee notice of the related redemption price promptly after the calculation thereof and the Trustee shall not have any responsibility for such calculation.
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(n) If less than all of the Notes of any Series are to be redeemed, the Company shall select the Notes of the Series to be redeemed pro rata or by lot or by such other method as the Company deems fair and appropriate unless otherwise required by law and, in respect of the Registered Global Securities, subject to the applicable procedures of the Depositary, Euroclear and Clearstream.
Section 3.02 Redemption for Tax Reasons.
If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States (or any taxing authority in the United States) (a “Tax Jurisdiction”) or the official position regarding the application or interpretation thereof (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice), which change or amendment is announced or becomes effective on or after the Issue Date, the Company becomes or, based upon a written opinion of independent counsel selected by the Company (a “Tax Opinion”), will become obligated to pay Additional Amounts as described herein under Section 4.01 hereof with respect to any series of Notes, then the Company may at any time at its option redeem, in whole, but not in part, the Notes of such series on not less than 10 nor more than 60 days’ prior notice, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest, if any (including, for the avoidance of doubt, any Additional Amounts due with respect to such principal and unpaid interest), on the Notes of such series to be redeemed to, but not including, the redemption date.
ARTICLE FOUR
CERTAIN COVENANTS OF THE COMPANY
Section 4.01 Payment of Additional Amounts.
(a) The Company will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts (the “Additional Amounts”) as are necessary in order that the net payment by the Company or the Paying Agent of the principal, premium, if any, and interest with respect to the Notes to a Holder that is not a United States Person (as defined below), after withholding or deduction for any present or future tax, assessment, or other governmental charge imposed by the United States or a taxing authority in the United States, will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay Additional Amounts will not apply:
(i) to any tax, assessment, or other governmental charge that would not have been imposed but for the Holder (or the beneficial owner for whose benefit such Holder holds the Notes), a fiduciary, settlor, beneficiary, member, or shareholder of the Holder, or a person holding a power over an estate or trust administered by a fiduciary holder, being treated as:
| (a) | being or having been present in, or engaged in a trade or business in, the United States, being treated as having been present in, or engaged in a trade or business in, the United States, or having or having had a permanent establishment in the United States; |
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| (b) | having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes, or the enforcement of any rights under the Indenture), including being or having been a citizen or resident of the United States or treated as being or having been a resident thereof; |
| (c) | being or having been a personal holding company, a passive foreign investment company, or a controlled foreign corporation for U.S. federal income tax purposes, a foreign tax exempt organization, or a corporation that has accumulated earnings to avoid U.S. federal income tax; |
| (d) | being or having been a “10-percent shareholder,” as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision, of the Company; or |
| (e) | being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, within the meaning of section 881(c)(3) of the Code or any successor provision; |
(ii) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership, or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership, or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to any tax, assessment, or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification, or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment, or other governmental charge;
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(iv) to any tax, assessment, or other governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from payments on the Notes;
(v) to any estate, inheritance, gift, sales, excise, transfer, wealth, or personal property tax or similar tax, assessment, or other governmental charge;
(vi) to any tax, assessment, or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(vii) to any tax, assessment, or other governmental charge required to be imposed, withheld, or deducted pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version of such Sections), any U.S. Treasury regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation, or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(viii) to any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(ix) to any tax, assessment, or other governmental charge imposed by reason of the failure of the beneficial owner to fulfill the statement requirements of Section 871(h) or Section 881(c) of the Code;
(x) to any tax, assessment, or other governmental charge required to be withheld by any Paying Agent from any payment of principal of, or interest on, any Note, if such payment can be made without such withholding by at least one other Paying Agent;
(xi) to any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business, or (ii) that is neither (A) buying the Notes for investment purposes only, nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the notes for investment purposes only; or
(xii) to any tax imposed as a result of any combination of items (i) through (xi) above.
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(b) The Notes are subject in all cases to any tax, fiscal, or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 4.01, the Company will not be required to pay Additional Amounts in respect of any tax, assessment, or other governmental charge.
(c) Neither the Trustee nor the Paying Agent shall have any responsibility or obligation to determine if Additional Amounts pursuant to the foregoing are due and payable or to verify the amount of any such Additional Amounts.
(d) As used in this Section 4.01 and under Section 3.02 hereof,
(i) “United States” or “U.S.” means the United States of America, any state thereof and the District of Columbia; and
(ii) “United States Person” means (i) any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, (ii) a corporation, partnership, or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia (other than a partnership that is not treated as a United States person for U.S. federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a U.S. court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial decisions of the trust, or if a valid election is in place to treat the trust as a United States person.
(e) If the Company is obligated to pay Additional Amounts with respect to any payment made on any Note, at least 30 days prior to the date of such payment, the Company will deliver to the Trustee and the Paying Agent an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable and such other information necessary to enable the Paying Agent to pay Additional Amounts on the relevant payment date (unless such obligation to pay Additional Amounts arises less than 45 days prior to the relevant payment date, in which case the Company may deliver such Officer’s Certificate as promptly as practicable thereafter). The Trustee and the Paying Agent shall be entitled to rely solely, without further inquiry, on such Officer’s Certificate as conclusive proof that such payments are necessary.
ARTICLE FIVE
MISCELLANEOUS
Section 5.01 Governing Laws; Waiver of Jury Trial.
THIS SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
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EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES, OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 5.02 No Adverse Interpretation of Other Agreements.
This Supplemental Indenture may not be used to interpret another indenture (other than the Base Indenture), loan, or debt agreement of the Company or a Subsidiary. Any such indenture, loan, or debt agreement may not be used to interpret this Supplemental Indenture (other than the Base Indenture).
Section 5.03 Successors and Assigns.
All agreements of the Company in this Supplemental Indenture and the Notes shall bind its successor. All agreements of the Trustee in this Supplemental Indenture shall bind its successor.
Section 5.04 Severability.
In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 5.05 Force Majeure.
In no event shall the Trustee or any Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, or acts of God, and interruptions, loss, or malfunctions of utilities, communications, or computer (software and hardware) services; it being understood that the Trustee and such Agent shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 5.06 Table of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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Section 5.07 Counterparts.
This Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Supplemental Indenture by facsimile or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture.
The Trustee and the Agents shall not have any duty to confirm that the person sending any notice, instruction, or other communication by electronic transmission (including by e-mail, facsimile transmission, web portal, or other electronic methods) is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee or an Agent, as applicable, to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign, or any other digital signature provider acceptable to the Trustee) shall be deemed original signatures for all purposes. The Company assumes all risks arising out of the use of electronic signatures and electronic methods to send communications to the Trustee and the Agents, including without limitation the risk of the Trustee and the Agents acting on an unauthorized communication, and the risk of interception or misuse by third parties.
Section 5.08 Confirmation of Indenture.
The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture, and all indentures supplemental thereto with respect to the Notes shall be read, taken, and construed as one and the same instrument.
Section 5.09 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 not the Trustee.
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SIGNATURES
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed, all as of the date first written above
| META PLATFORMS, INC. | ||
| By: | /s/ Todd Heysse | |
| Name: Todd Heysse | ||
| Title: Vice President, Treasury and Corporate Finance | ||
[Signature Page to Supplemental Indenture]
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, | ||
| By: | /s/ David Jason | |
| Name: David Jason | ||
| Title: Vice President | ||
[Signature Page to Supplemental Indenture]
EXHIBIT A
FORM
OF
4.300% SENIOR NOTE DUE 2031
EX. A-1
[FORM OF FACE OF NOTE]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN. ANY HOLDER OR BENEFICIAL OWNER SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT IT IS NOT A “SPECIFIED FOREIGN ENTITY” AS DEFINED IN SECTION 7701(a)(51)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Ex. A-2
| No. [ ] | €[ ] | |
| ISIN XS3552752217 Common Code 355275221 |
META PLATFORMS, INC.
4.300% SENIOR NOTE DUE 2031
META PLATFORMS, INC., a corporation in existence under the laws of the State of Delaware (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to USB Nominees (UK) Limited, or registered assigns, the principal sum of €[ ] on February 15, 2031 (the “Maturity Date”), and to pay interest on said principal sum annually on February 15, commencing February 15, 2027 (each, an “Interest Payment Date”), at the rate of 4.300% per annum from November 12, 2026, or from the most recent date in respect of which interest has been paid or duly provided for, until payment of the principal sum has been made or duly provided for. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the record date for such Interest Payment Date, which shall be the calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. If the Company defaults in a payment of any such interest, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and the Paying Agent and shall promptly mail or cause to be mailed or deliver by electronic transmission to each Holder a notice that states the special record date, the payment date, and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful manner.
Payment of the principal of and interest on this Note will be made at the Place of Payment in Euros as more fully provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Ex. A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| By: | ||
| Name: | ||
| Title: | ||
Ex. A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in the within- mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
||
Ex. A-5
[FORM OF REVERSE OF NOTE]
META PLATFORMS, INC.
4.300% SENIOR NOTE DUE 2031
This Note is one of a duly authorized issue of debentures, notes, or other debt instruments of the Company (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture), to which Indenture and any other supplemental indenture thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee, and the Holders of the Securities, the terms upon which the Securities are, and are to be, authenticated and delivered, and the definition of capitalized terms used herein and not otherwise defined herein. The Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in different currencies, may mature at different times, may bear interest (if any) at different rates (which rates may be fixed or variable), may be subject to different redemption provisions (if any), may be subject to different sinking, purchase, or analogous funds (if any), may be subject to different covenants and Events of Default, and may otherwise vary as provided in the Indenture. This Note is one of a Series of Securities of the Company designated as set forth on the face hereof (herein called the “2031 Notes”), initially limited in aggregate principal amount to €1,750,000,000.
Interest on the 2031 Notes will be payable annually in arrears on each Interest Payment Date. If any Interest Payment Date, the Maturity Date or any earlier repayment date falls on a day that is not a Business Day, then payment of interest and/or principal that would otherwise be payable on such date will be made on the next succeeding Business Day. No interest will accrue on the amount so payable for the period from such Interest Payment Date, Maturity Date or earlier repayment date, as the case may be, to the date payment is made.
Interest on the 2031 Notes will be paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2031 Notes (or from and including November 12, 2026, if no interest has been paid on the 2031 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The Company may redeem the 2031 Notes, at its option, in whole or in part, at any time and from time to time prior to January 15, 2031 (one month prior to the maturity date of the 2031 Notes) (the “2031 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2031 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2031 Par Call Date (assuming the 2031 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 20 basis points, and
Ex. A-6
(ii) 100% of the principal amount of the 2031 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company may redeem the 2031 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2031 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2031 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2031 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The 2031 Notes may also be redeemed at the option of the Company prior to the Maturity Date, as provided in Section 3.02 of the Seventh Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities of each Series to be affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of at least a majority in principal amount of the outstanding Securities of each Series to be affected by such waiver, on behalf of the Holders of Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture or the Securities with respect to such Series. Once effective, any such consent or waiver by the Holder of this 2031 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2031 Note and of any 2031 Note issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2031 Note.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture.
If an Event of Default with respect to the 2031 Notes occurs and is continuing, the principal amount hereof may become immediately due and payable in the manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this 2031 Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this 2031 Note at the times, place, and rate, and in the coin or currency, herein prescribed.
Ex. A-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2031 Note is registerable in the Security register, upon surrender of this 2031 Note for registration of transfer at the office or agency of the Company duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 2031 Notes of the same Series of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by the Indenture.
The 2031 Notes are issuable only in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this 2031 Note may be exchanged for other Securities of the same Series of any authorized denominations and of a like aggregate principal amount, upon surrender of this 2031 Note at the office or agency of the Company.
No service charge shall be made for any such registration or transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment, or other governmental charge that may be imposed in connection therewith.
Prior to the presentment of this 2031 Note for registration of transfer, the Company, the Trustee, the Paying Agent and any agent of the Company, the Trustee or the Paying Agent may deem and treat the Person in whose name this 2031 Note is registered on the Security register as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this 2031 Note is overdue, and none of the Company, the Trustee, the Paying Agent nor any agent of the Company, the Trustee or the Paying Agent shall be affected by notice to the contrary.
The Company may, without the consent of the existing holders of the 2031 Notes, issue additional 2031 Notes of this Series having the same terms (except the issue date, the date from which interest accrues, and, in some cases, the first interest payment date) so that existing 2031 Notes and additional 2031 Notes form the same series under the Indenture, provided, however, that if any such additional 2031 Notes are not fungible with the existing 2031 Notes for U.S. federal income tax purposes, such additional 2031 Notes will have a separate Common Code, ISIN, or other identifying number.
This 2031 Note shall be governed by and interpreted in accordance with the laws of the State of New York.
All terms used in this 2031 Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Ex. A-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ___________________ attorney to transfer such Note on the books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
Ex. A-9
EXHIBIT B
FORM
OF
4.650% SENIOR NOTE DUE 2033
Ex. B-1
[FORM OF FACE OF NOTE]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN. ANY HOLDER OR BENEFICIAL OWNER SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT IT IS NOT A “SPECIFIED FOREIGN ENTITY” AS DEFINED IN SECTION 7701(a)(51)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Ex. B-2
| No. [ ] | €[ ] | |
| ISIN XS3552752480 | ||
| Common Code 355275248 |
META PLATFORMS, INC.
4.650% SENIOR NOTE DUE 2033
META PLATFORMS, INC., a corporation in existence under the laws of the State of Delaware (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to USB Nominees (UK) Limited, or registered assigns, the principal sum of €[ ] on February 15, 2033 (the “Maturity Date”), and to pay interest on said principal sum annually on February 15, commencing February 15, 2027 (each, an “Interest Payment Date”), at the rate of 4.650% per annum from November 12, 2026, or from the most recent date in respect of which interest has been paid or duly provided for, until payment of the principal sum has been made or duly provided for. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the record date for such Interest Payment Date, which shall be the calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. If the Company defaults in a payment of any such interest, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and the Paying Agent and shall promptly mail or cause to be mailed or deliver by electronic transmission to each Holder a notice that states the special record date, the payment date, and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful manner.
Payment of the principal of and interest on this Note will be made at the Place of Payment in Euros as more fully provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Ex. B-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| By: | ||
| Name: | ||
| Title: | ||
Ex. B-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in the within- mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
||
Ex. B-5
[FORM OF REVERSE OF NOTE]
META PLATFORMS, INC.
4.650% SENIOR NOTE DUE 2033
This Note is one of a duly authorized issue of debentures, notes, or other debt instruments of the Company (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture), to which Indenture and any other supplemental indenture thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee, and the Holders of the Securities, the terms upon which the Securities are, and are to be, authenticated and delivered, and the definition of capitalized terms used herein and not otherwise defined herein. The Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in different currencies, may mature at different times, may bear interest (if any) at different rates (which rates may be fixed or variable), may be subject to different redemption provisions (if any), may be subject to different sinking, purchase, or analogous funds (if any), may be subject to different covenants and Events of Default, and may otherwise vary as provided in the Indenture. This Note is one of a Series of Securities of the Company designated as set forth on the face hereof (herein called the “2033 Notes”), initially limited in aggregate principal amount to €1,250,000,000.
Interest on the 2033 Notes will be payable annually in arrears on each Interest Payment Date. If any Interest Payment Date, the Maturity Date or any earlier repayment date falls on a day that is not a Business Day, then payment of interest and/or principal that would otherwise be payable on such date will be made on the next succeeding Business Day. No interest will accrue on the amount so payable for the period from such Interest Payment Date, Maturity Date or earlier repayment date, as the case may be, to the date payment is made.
Interest on the 2033 Notes will be paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2033 Notes (or from and including November 12, 2026, if no interest has been paid on the 2033 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The Company may redeem the 2033 Notes, at its option, in whole or in part, at any time and from time to time prior to December 15, 2032 (two months prior to the maturity date of the 2033 Notes) (the “2033 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2033 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2033 Par Call Date (assuming the 2033 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 25 basis points, and
Ex. B-6
(ii) 100% of the principal amount of the 2033 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company may redeem the 2033 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2033 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2033 Note must be in a minimum principal amount of €100,000, 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 excluding, the Redemption Date.
The 2033 Notes may also be redeemed at the option of the Company prior to the Maturity Date, as provided in Section 3.02 of the Seventh Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities of each Series to be affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of at least a majority in principal amount of the outstanding Securities of each Series to be affected by such waiver, on behalf of the Holders of Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture or the Securities with respect to such Series. Once effective, any such consent or waiver by the Holder of this 2033 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2033 Note and of any 2033 Note issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2033 Note.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture.
If an Event of Default with respect to the 2033 Notes occurs and is continuing, the principal amount hereof may become immediately due and payable in the manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this 2033 Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this 2033 Note at the times, place, and rate, and in the coin or currency, herein prescribed.
Ex. B-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2033 Note is registerable in the Security register, upon surrender of this 2033 Note for registration of transfer at the office or agency of the Company duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 2033 Notes of the same Series of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by the Indenture.
The 2033 Notes are issuable only in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this 2033 Note may be exchanged for other Securities of the same Series of any authorized denominations and of a like aggregate principal amount, upon surrender of this 2033 Note at the office or agency of the Company.
No service charge shall be made for any such registration or transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment, or other governmental charge that may be imposed in connection therewith.
Prior to the presentment of this 2033 Note for registration of transfer, the Company, the Trustee, the Paying Agent, and any agent of the Company, the Trustee or the Paying Agent may deem and treat the Person in whose name this 2033 Note is registered on the Security register as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this 2033 Note is overdue, and none of the Company, the Trustee, the Paying Agent nor any agent of the Company, the Trustee or the Paying Agent shall be affected by notice to the contrary.
The Company may, without the consent of the existing holders of the 2033 Notes, issue additional 2033 Notes of this Series having the same terms (except the issue date, the date from which interest accrues, and, in some cases, the first interest payment date) so that existing 2033 Notes and additional 2033 Notes form the same series under the Indenture, provided, however, that if any such additional 2033 Notes are not fungible with the existing 2033 Notes for U.S. federal income tax purposes, such additional 2033 Notes will have a separate Common Code, ISIN, or other identifying number.
This 2033 Note shall be governed by and interpreted in accordance with the laws of the State of New York.
All terms used in this 2033 Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Ex. B-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ___________________ attorney to transfer such Note on the books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
Ex.B-9
EXHIBIT C
FORM
OF
4.900% SENIOR NOTE DUE 2035
Ex.C-1
[FORM OF FACE OF NOTE]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN. ANY HOLDER OR BENEFICIAL OWNER SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT IT IS NOT A “SPECIFIED FOREIGN ENTITY” AS DEFINED IN SECTION 7701(a)(51)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Ex.C-2
| No. [ ] | €[ ] | |
| ISIN XS3552752563 | ||
| Common Code 355275256 |
META PLATFORMS, INC.
4.900% SENIOR NOTE DUE 2035
META PLATFORMS, INC., a corporation in existence under the laws of the State of Delaware (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to USB Nominees (UK) Limited, or registered assigns, the principal sum of €[ ] on February 15, 2035 (the “Maturity Date”), and to pay interest on said principal sum annually on February 15, commencing February 15, 2027 (each, an “Interest Payment Date”), at the rate of 4.900% per annum from November 12, 2026, or from the most recent date in respect of which interest has been paid or duly provided for, until payment of the principal sum has been made or duly provided for. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the record date for such Interest Payment Date, which shall be the calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. If the Company defaults in a payment of any such interest, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and the Paying Agent and shall promptly mail or cause to be mailed or deliver by electronic transmission to each Holder a notice that states the special record date, the payment date, and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful manner.
Payment of the principal of and interest on this Note will be made at the Place of Payment in Euros as more fully provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Ex. C-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| By: |
||
| Name: | ||
| Title: | ||
Ex. C-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in the within- mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: |
||
| Authorized Signatory | ||
| Dated: |
| |
Ex. C-5
[FORM OF REVERSE OF NOTE]
META PLATFORMS, INC.
4.900% SENIOR NOTE DUE 2035
This Note is one of a duly authorized issue of debentures, notes, or other debt instruments of the Company (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture), to which Indenture and any other supplemental indenture thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee, and the Holders of the Securities, the terms upon which the Securities are, and are to be, authenticated and delivered, and the definition of capitalized terms used herein and not otherwise defined herein. The Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in different currencies, may mature at different times, may bear interest (if any) at different rates (which rates may be fixed or variable), may be subject to different redemption provisions (if any), may be subject to different sinking, purchase, or analogous funds (if any), may be subject to different covenants and Events of Default, and may otherwise vary as provided in the Indenture. This Note is one of a Series of Securities of the Company designated as set forth on the face hereof (herein called the “2035 Notes”), initially limited in aggregate principal amount to €1,000,000,000.
Interest on the 2035 Notes will be payable annually in arrears on each Interest Payment Date. If any Interest Payment Date, the Maturity Date or any earlier repayment date falls on a day that is not a Business Day, then payment of interest and/or principal that would otherwise be payable on such date will be made on the next succeeding Business Day. No interest will accrue on the amount so payable for the period from such Interest Payment Date, Maturity Date or earlier repayment date, as the case may be, to the date payment is made.
Interest on the 2035 Notes will be paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2035 Notes (or from and including November 12, 2026, if no interest has been paid on the 2035 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The Company may redeem the 2035 Notes, at its option, in whole or in part, at any time and from time to time prior to November 15, 2034 (three months prior to the maturity date of the 2035 Notes) (the “2035 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2035 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2035 Par Call Date (assuming the 2035 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 30 basis points, and
Ex. C-6
(ii) 100% of the principal amount of the 2035 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company may redeem the 2035 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2035 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2035 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2035 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The 2035 Notes may also be redeemed at the option of the Company prior to the Maturity Date, as provided in Section 3.02 of the Seventh Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities of each Series to be affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of at least a majority in principal amount of the outstanding Securities of each Series to be affected by such waiver, on behalf of the Holders of Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture or the Securities with respect to such Series. Once effective, any such consent or waiver by the Holder of this 2035 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2035 Note and of any 2035 Note issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2035 Note.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture.
If an Event of Default with respect to the 2035 Notes occurs and is continuing, the principal amount hereof may become immediately due and payable in the manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this 2035 Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this 2035 Note at the times, place, and rate, and in the coin or currency, herein prescribed.
Ex. C-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2035 Note is registerable in the Security register, upon surrender of this 2035 Note for registration of transfer at the office or agency of the Company duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 2035 Notes of the same Series of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by the Indenture.
The 2035 Notes are issuable only in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this 2035 Note may be exchanged for other Securities of the same Series of any authorized denominations and of a like aggregate principal amount, upon surrender of this 2035 Note at the office or agency of the Company.
No service charge shall be made for any such registration or transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment, or other governmental charge that may be imposed in connection therewith.
Prior to the presentment of this 2035 Note for registration of transfer, the Company, the Trustee, the Paying Agent and any agent of the Company, the Trustee or the Paying Agent may deem and treat the Person in whose name this 2035 Note is registered on the Security register as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this 2035 Note is overdue, and none of the Company, the Trustee, the Paying Agent, nor any agent of the Company, the Trustee or the Paying Agent shall be affected by notice to the contrary.
The Company may, without the consent of the existing holders of the 2035 Notes, issue additional 2035 Notes of this Series having the same terms (except the issue date, the date from which interest accrues, and, in some cases, the first interest payment date) so that existing 2035 Notes and additional 2035 Notes form the same series under the Indenture, provided, however, that if any such additional 2035 Notes are not fungible with the existing 2035 Notes for U.S. federal income tax purposes, such additional 2035 Notes will have a separate Common Code, ISIN, or other identifying number.
This 2035 Note shall be governed by and interpreted in accordance with the laws of the State of New York.
All terms used in this 2035 Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Ex. C-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ___________________ attorney to transfer such Note on the books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
Ex. C-9
EXHIBIT D
FORM
OF
5.400% SENIOR NOTE DUE 2038
Ex. D-1
[FORM OF FACE OF NOTE]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN. ANY HOLDER OR BENEFICIAL OWNER SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT IT IS NOT A “SPECIFIED FOREIGN ENTITY” AS DEFINED IN SECTION 7701(a)(51)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Ex. D-2
| No. [ ] | €[ ] | |
| ISIN XS3552800800 | ||
| Common Code 355280080 |
META PLATFORMS, INC.
5.400% SENIOR NOTE DUE 2038
META PLATFORMS, INC., a corporation in existence under the laws of the State of Delaware (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to USB Nominees (UK) Limited, or registered assigns, the principal sum of €[ ] on November 15, 2038 (the “Maturity Date”), and to pay interest on said principal sum annually on November 15, commencing November 15, 2027 (each, an “Interest Payment Date”), at the rate of 5.400% per annum from November 12, 2026, or from the most recent date in respect of which interest has been paid or duly provided for, until payment of the principal sum has been made or duly provided for. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the record date for such Interest Payment Date, which shall be the calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. If the Company defaults in a payment of any such interest, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and the Paying Agent and shall promptly mail or cause to be mailed or deliver by electronic transmission to each Holder a notice that states the special record date, the payment date, and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful manner.
Payment of the principal of and interest on this Note will be made at the Place of Payment in Euros as more fully provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Ex. D-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| By: |
||
| Name: | ||
| Title: | ||
Ex. D-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in the within- mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
Ex. D-5
[FORM OF REVERSE OF NOTE]
META PLATFORMS, INC.
5.400% SENIOR NOTE DUE 2038
This Note is one of a duly authorized issue of debentures, notes, or other debt instruments of the Company (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture), to which Indenture and any other supplemental indenture thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee, and the Holders of the Securities, the terms upon which the Securities are, and are to be, authenticated and delivered, and the definition of capitalized terms used herein and not otherwise defined herein. The Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in different currencies, may mature at different times, may bear interest (if any) at different rates (which rates may be fixed or variable), may be subject to different redemption provisions (if any), may be subject to different sinking, purchase, or analogous funds (if any), may be subject to different covenants and Events of Default, and may otherwise vary as provided in the Indenture. This Note is one of a Series of Securities of the Company designated as set forth on the face hereof (herein called the “2038 Notes”), initially limited in aggregate principal amount to €1,750,000,000.
Interest on the 2038 Notes will be payable annually in arrears on each Interest Payment Date. If any Interest Payment Date, the Maturity Date or any earlier repayment date falls on a day that is not a Business Day, then payment of interest and/or principal that would otherwise be payable on such date will be made on the next succeeding Business Day. No interest will accrue on the amount so payable for the period from such Interest Payment Date, Maturity Date or earlier repayment date, as the case may be, to the date payment is made.
Interest on the 2038 Notes will be paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2038 Notes (or from and including November 12, 2026, if no interest has been paid on the 2038 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The Company may redeem the 2038 Notes, at its option, in whole or in part, at any time and from time to time prior to August 15, 2038 (three months prior to the maturity date of the 2038 Notes) (the “2038 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2038 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2038 Par Call Date (assuming the 2038 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 35 basis points, and
Ex. D-6
(ii) 100% of the principal amount of the 2038 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company may redeem the 2038 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2038 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2038 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2038 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The 2038 Notes may also be redeemed at the option of the Company prior to the Maturity Date, as provided in Section 3.02 of the Seventh Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities of each Series to be affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of at least a majority in principal amount of the outstanding Securities of each Series to be affected by such waiver, on behalf of the Holders of Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture or the Securities with respect to such Series. Once effective, any such consent or waiver by the Holder of this 2038 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2038 Note and of any 2038 Note issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2038 Note.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture.
If an Event of Default with respect to the 2038 Notes occurs and is continuing, the principal amount hereof may become immediately due and payable in the manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this 2038 Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this 2038 Note at the times, place, and rate, and in the coin or currency, herein prescribed.
Ex. D-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2038 Note is registerable in the Security register, upon surrender of this 2038 Note for registration of transfer at the office or agency of the Company duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 2038 Notes of the same Series of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by the Indenture.
The 2038 Notes are issuable only in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this 2038 Note may be exchanged for other Securities of the same Series of any authorized denominations and of a like aggregate principal amount, upon surrender of this 2038 Note at the office or agency of the Company.
No service charge shall be made for any such registration or transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment, or other governmental charge that may be imposed in connection therewith.
Prior to the presentment of this 2038 Note for registration of transfer, the Company, the Trustee, the Paying Agent, and any agent of the Company, the Trustee or the Paying Agent may deem and treat the Person in whose name this 2038 Note is registered on the Security register as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this 2038 Note is overdue, and none of the Company, the Trustee, the Paying Agent nor any agent of the Company, the Trustee or the Paying Agent shall be affected by notice to the contrary.
The Company may, without the consent of the existing holders of the 2038 Notes, issue additional 2038 Notes of this Series having the same terms (except the issue date, the date from which interest accrues, and, in some cases, the first interest payment date) so that existing 2038 Notes and additional 2038 Notes form the same series under the Indenture, provided, however, that if any such additional 2038 Notes are not fungible with the existing 2038 Notes for U.S. federal income tax purposes, such additional 2038 Notes will have a separate Common Code, ISIN, or other identifying number.
This 2038 Note shall be governed by and interpreted in accordance with the laws of the State of New York.
All terms used in this 2038 Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Ex. D-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ___________________ attorney to transfer such Note on the books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
Ex. D-9
EXHIBIT E
FORM
OF
6.050% SENIOR NOTE DUE 2044
Ex. E-1
[FORM OF FACE OF NOTE]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN. ANY HOLDER OR BENEFICIAL OWNER SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT IT IS NOT A “SPECIFIED FOREIGN ENTITY” AS DEFINED IN SECTION 7701(a)(51)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Ex. E-2
| No. [ ] |
€[ ] | |
| ISIN XS3552801014 | ||
| Common Code 355280101 |
META PLATFORMS, INC.
6.050% SENIOR NOTE DUE 2044
META PLATFORMS, INC., a corporation in existence under the laws of the State of Delaware (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to USB Nominees (UK) Limited, or registered assigns, the principal sum of €[ ] on November 15, 2044 (the “Maturity Date”), and to pay interest on said principal sum annually on November 15, commencing November 15, 2027 (each, an “Interest Payment Date”), at the rate of 6.050% per annum from November 12, 2026, or from the most recent date in respect of which interest has been paid or duly provided for, until payment of the principal sum has been made or duly provided for. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the record date for such Interest Payment Date, which shall be the calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. If the Company defaults in a payment of any such interest, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and the Paying Agent and shall promptly mail or cause to be mailed or deliver by electronic transmission to each Holder a notice that states the special record date, the payment date, and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful manner.
Payment of the principal of and interest on this Note will be made at the Place of Payment in Euros as more fully provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Ex. E-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| By: | ||
| Name: | ||
| Title: |
Ex. E-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in the within- mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
| |
Ex. E-5
[FORM OF REVERSE OF NOTE]
META PLATFORMS, INC.
6.050% SENIOR NOTE DUE 2044
This Note is one of a duly authorized issue of debentures, notes, or other debt instruments of the Company (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture), to which Indenture and any other supplemental indenture thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee, and the Holders of the Securities, the terms upon which the Securities are, and are to be, authenticated and delivered, and the definition of capitalized terms used herein and not otherwise defined herein. The Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in different currencies, may mature at different times, may bear interest (if any) at different rates (which rates may be fixed or variable), may be subject to different redemption provisions (if any), may be subject to different sinking, purchase, or analogous funds (if any), may be subject to different covenants and Events of Default, and may otherwise vary as provided in the Indenture. This Note is one of a Series of Securities of the Company designated as set forth on the face hereof (herein called the “2044 Notes”), initially limited in aggregate principal amount to €1,750,000,000.
Interest on the 2044 Notes will be payable annually in arrears on each Interest Payment Date. If any Interest Payment Date, the Maturity Date or any earlier repayment date falls on a day that is not a Business Day, then payment of interest and/or principal that would otherwise be payable on such date will be made on the next succeeding Business Day. No interest will accrue on the amount so payable for the period from such Interest Payment Date, Maturity Date or earlier repayment date, as the case may be, to the date payment is made.
Interest on the 2044 Notes will be paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2044 Notes (or from and including November 12, 2026, if no interest has been paid on the 2044 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The Company may redeem the 2044 Notes, at its option, in whole or in part, at any time and from time to time prior to May 15, 2044 (six months prior to the maturity date of the 2044 Notes) (the “2044 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2044 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2044 Par Call Date (assuming the 2044 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 40 basis points, and
Ex. E-6
(ii) 100% of the principal amount of the 2044 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company may redeem the 2044 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2044 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2044 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2044 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The 2044 Notes may also be redeemed at the option of the Company prior to the Maturity Date, as provided in Section 3.02 of the Seventh Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities of each Series to be affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of at least a majority in principal amount of the outstanding Securities of each Series to be affected by such waiver, on behalf of the Holders of Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture or the Securities with respect to such Series. Once effective, any such consent or waiver by the Holder of this 2044 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2044 Note and of any 2044 Note issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2044 Note.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture.
If an Event of Default with respect to the 2044 Notes occurs and is continuing, the principal amount hereof may become immediately due and payable in the manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this 2044 Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this 2044 Note at the times, place, and rate, and in the coin or currency, herein prescribed.
Ex. E-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2044 Note is registerable in the Security register, upon surrender of this 2044 Note for registration of transfer at the office or agency of the Company duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 2044 Notes of the same Series of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by the Indenture.
The 2044 Notes are issuable only in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this 2044 Note may be exchanged for other Securities of the same Series of any authorized denominations and of a like aggregate principal amount, upon surrender of this 2044 Note at the office or agency of the Company.
No service charge shall be made for any such registration or transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment, or other governmental charge that may be imposed in connection therewith.
Prior to the presentment of this 2044 Note for registration of transfer, the Company, the Trustee, the Paying Agent and any agent of the Company, the Trustee or the Paying Agent may deem and treat the Person in whose name this 2044 Note is registered on the Security register as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this 2044 Note is overdue, and none of the Company, the Trustee, the Paying Agent nor any agent of the Company, the Trustee or the Paying Agent shall be affected by notice to the contrary.
The Company may, without the consent of the existing holders of the 2044 Notes, issue additional 2044 Notes of this Series having the same terms (except the issue date, the date from which interest accrues, and, in some cases, the first interest payment date) so that existing 2044 Notes and additional 2044 Notes form the same series under the Indenture, provided, however, that if any such additional 2044 Notes are not fungible with the existing 2044 Notes for U.S. federal income tax purposes, such additional 2044 Notes will have a separate Common Code, ISIN, or other identifying number.
This 2044 Note shall be governed by and interpreted in accordance with the laws of the State of New York.
All terms used in this 2044 Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Ex. E-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ___________________ attorney to transfer such Note on the books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
Ex. E-9
EXHIBIT F
FORM
OF
6.400% SENIOR NOTE DUE 2065
Ex. F-1
[FORM OF FACE OF NOTE]
THIS SECURITY IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, HAS AN INTEREST HEREIN. ANY HOLDER OR BENEFICIAL OWNER SHALL BE DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT IT IS NOT A “SPECIFIED FOREIGN ENTITY” AS DEFINED IN SECTION 7701(a)(51)(B) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
Ex. F-2
| No. [ ] |
€[ ] | |
| ISIN XS3552801287 | ||
| Common Code 355280128 |
META PLATFORMS, INC.
6.400% SENIOR NOTE DUE 2065
META PLATFORMS, INC., a corporation in existence under the laws of the State of Delaware (herein called the “Company,” which term includes any successor corporation under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to USB Nominees (UK) Limited, or registered assigns, the principal sum of €[ ] on February 15, 2065 (the “Maturity Date”), and to pay interest on said principal sum annually on February 15, commencing February 15, 2027 (each, an “Interest Payment Date”), at the rate of 6.400% per annum from November 12, 2026, or from the most recent date in respect of which interest has been paid or duly provided for, until payment of the principal sum has been made or duly provided for. The interest so payable and punctually paid or duly provided for on any Interest Payment Date will be paid to the Person in whose name this Note (or one or more predecessor Securities) is registered at the close of business on the record date for such Interest Payment Date, which shall be the calendar day (whether or not a Business Day) immediately preceding such Interest Payment Date. If the Company defaults in a payment of any such interest, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date. The Company shall fix or cause to be fixed any such special record date and payment date to the reasonable satisfaction of the Trustee and the Paying Agent and shall promptly mail or cause to be mailed or deliver by electronic transmission to each Holder a notice that states the special record date, the payment date, and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any lawful manner.
Payment of the principal of and interest on this Note will be made at the Place of Payment in Euros as more fully provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place. Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Ex. F-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| By: | ||
| Name: | ||
| Title: | ||
Ex. F-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to in the within- mentioned Indenture.
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: |
| |
Ex. F-5
[FORM OF REVERSE OF NOTE]
META PLATFORMS, INC.
6.400% SENIOR NOTE DUE 2065
This Note is one of a duly authorized issue of debentures, notes, or other debt instruments of the Company (herein called the “Securities”), issued and to be issued in one or more Series under an Indenture dated as of August 9, 2022 (the “Base Indenture”), as supplemented by the Seventh Supplemental Indenture dated as of November 12, 2026 (the “Seventh Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank Trust Company, National Association, as Trustee (herein called the “Trustee”, which term includes any successor Trustee under the Indenture), to which Indenture and any other supplemental indenture thereto reference is hereby made for a statement of the respective rights thereunder of the Company, the Trustee, and the Holders of the Securities, the terms upon which the Securities are, and are to be, authenticated and delivered, and the definition of capitalized terms used herein and not otherwise defined herein. The Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in different currencies, may mature at different times, may bear interest (if any) at different rates (which rates may be fixed or variable), may be subject to different redemption provisions (if any), may be subject to different sinking, purchase, or analogous funds (if any), may be subject to different covenants and Events of Default, and may otherwise vary as provided in the Indenture. This Note is one of a Series of Securities of the Company designated as set forth on the face hereof (herein called the “2065 Notes”), initially limited in aggregate principal amount to €1,500,000,000.
Interest on the 2065 Notes will be payable annually in arrears on each Interest Payment Date. If any Interest Payment Date, the Maturity Date or any earlier repayment date falls on a day that is not a Business Day, then payment of interest and/or principal that would otherwise be payable on such date will be made on the next succeeding Business Day. No interest will accrue on the amount so payable for the period from such Interest Payment Date, Maturity Date or earlier repayment date, as the case may be, to the date payment is made.
Interest on the 2065 Notes will be paid on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2065 Notes (or from and including November 12, 2026, if no interest has been paid on the 2065 Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The Company may redeem the 2065 Notes, at its option, in whole or in part, at any time and from time to time prior to August 15, 2064 (six months prior to the maturity date of the 2065 Notes) (the “2065 Par Call Date”), in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2065 Note must be in a minimum principal amount of €100,000, for a redemption price equal to the greater of:
(i) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) that would have been payable if such redemption had been made on the 2065 Par Call Date (assuming the 2065 Notes matured on such date) discounted to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 45 basis points, and
Ex. F-6
(ii) 100% of the principal amount of the 2065 Notes to be redeemed, plus, in each case, accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The Company may redeem the 2065 Notes, at its option, in whole or in part, at any time and from time to time on or after the 2065 Par Call Date, in principal amounts of €1,000 and integral multiples of €1,000 in excess thereof, provided that the unredeemed portion of a 2065 Note must be in a minimum principal amount of €100,000, at a redemption price equal to 100% of the principal amount of the 2065 Notes being redeemed plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
The 2065 Notes may also be redeemed at the option of the Company prior to the Maturity Date, as provided in Section 3.02 of the Seventh Supplemental Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each Series under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Securities of each Series to be affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of at least a majority in principal amount of the outstanding Securities of each Series to be affected by such waiver, on behalf of the Holders of Securities of such Series, to waive compliance by the Company with certain provisions of the Indenture or the Securities with respect to such Series. Once effective, any such consent or waiver by the Holder of this 2065 Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2065 Note and of any 2065 Note issued upon registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this 2065 Note.
The Indenture contains provisions setting forth certain conditions to the institution of proceedings by Holders of Securities with respect to the Indenture or for any remedy under the Indenture.
If an Event of Default with respect to the 2065 Notes occurs and is continuing, the principal amount hereof may become immediately due and payable in the manner and with the effect provided in the Indenture.
No reference herein to the Indenture and no provision of this 2065 Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this 2065 Note at the times, place, and rate, and in the coin or currency, herein prescribed.
Ex. F-7
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2065 Note is registerable in the Security register, upon surrender of this 2065 Note for registration of transfer at the office or agency of the Company duly endorsed, or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company duly executed, by the Holder hereof or his attorney duly authorized in writing, and thereupon the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new 2065 Notes of the same Series of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by the Indenture.
The 2065 Notes are issuable only in registered form without coupons in denominations of €100,000 and integral multiples of €1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this 2065 Note may be exchanged for other Securities of the same Series of any authorized denominations and of a like aggregate principal amount, upon surrender of this 2065 Note at the office or agency of the Company.
No service charge shall be made for any such registration or transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax, assessment, or other governmental charge that may be imposed in connection therewith.
Prior to the presentment of this 2065 Note for registration of transfer, the Company, the Trustee, the Paying Agent and any agent of the Company, the Trustee or the Paying Agent may deem and treat the Person in whose name this 2065 Note is registered on the Security register as the absolute owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this 2065 Note is overdue, and none of the Company, the Trustee, the Paying Agent nor any agent of the Company, the Trustee or the Paying Agent shall be affected by notice to the contrary.
The Company may, without the consent of the existing holders of the 2065 Notes, issue additional 2065 Notes of this Series having the same terms (except the issue date, the date from which interest accrues, and, in some cases, the first interest payment date) so that existing 2065 Notes and additional 2065 Notes form the same series under the Indenture, provided, however, that if any such additional 2065 Notes are not fungible with the existing 2065 Notes for U.S. federal income tax purposes, such additional 2065 Notes will have a separate Common Code, ISIN, or other identifying number.
This 2065 Note shall be governed by and interpreted in accordance with the laws of the State of New York.
All terms used in this 2065 Note which are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Ex. F-8
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s), and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and appointing ___________________ attorney to transfer such Note on the books of the Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever.
Ex. F-9
Exhibit 5.1
|
Davis Polk & Wardwell LLP 450 Lexington Avenue davispolk.com |
November 12, 2026
Meta Platforms, Inc.
1 Meta Way
Menlo Park, California 94025
Ladies and Gentlemen:
Meta Platforms, Inc., a Delaware corporation (the “Company”), has filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File No. 333-295425) (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities, including €1,750,000,000 aggregate principal amount of its 4.300% Senior Notes due 2031 (the “2031 Notes”), €1,250,000,000 aggregate principal amount of its 4.650% Senior Notes due 2033 (the “2033 Notes”), €1,000,000,000 aggregate principal amount of its 4.900% Senior Notes due 2035 (the “2035 Notes”), €1,750,000,000 aggregate principal amount of its 5.400% Senior Notes due 2038 (the “2038 Notes”), €1,750,000,000 aggregate principal amount of its 6.050% Senior Notes due 2044 (the “2044 Notes”) and €1,500,000,000 aggregate principal amount of its 6.400% Senior Notes due 2065 (the “2065 Notes” and, together with the 2031 Notes, the 2033 Notes, the 2035 Notes, the 2038 Notes and the 2044 Notes, the “Securities”). The Securities are to be issued pursuant to the provisions of the Original Indenture dated as of August 9, 2022 (the “Original Indenture”) between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Seventh Supplemental Indenture establishing the terms of the Securities, dated as of November 12, 2026, between the Company and the Trustee (the “Seventh Supplemental Indenture” and, together with the Original Indenture, the “Indenture”). The Securities are to be sold pursuant to the Underwriting Agreement dated November 4, 2026 (the “Underwriting Agreement”) among the Company and the several underwriters named therein (the “Underwriters”).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the Securities have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, the Securities will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to, (x) the enforceability of any waiver of rights under any usury or stay law, (y) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.
In addition, we have assumed that the Indenture and the Securities (collectively, the “Documents”) are valid, binding and enforceable agreements of each party thereto (other than as expressly covered above in respect of the Company). We have also assumed that the execution, delivery and performance by each party to each Document to which it is a party (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware, except that we express no opinion as to (i) any law, rule or regulation that is applicable to the Company, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate or (ii) any law, rule or regulation relating to national security.
We hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement and further consent to the reference to our name under the caption “Legal Matters” in the prospectus supplement which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP