STERIS plc S-3ASR, filed Mar 23, 2021
STERIS plc (STE)
Table of Contents
As filed with the Securities and Exchange Commission on March 23, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| STERIS plc STERIS Irish FinCo Unlimited Company STERIS Corporation STERIS Limited |
Ireland Ireland Ohio England and Wales |
98-1455064 98-1271422 34-1482024 98-1203539 | ||
| (Exact name of registrant as specified in its charter) |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
c/o STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
+353 1 232 2000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
J. Adam Zangerle
STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
+353 1 232 2000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Peter C. Zwick
Jones Day
2727 North Harwood Street
Dallas, Texas 75201
+1 214 220 3939
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
STERIS plc
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
STERIS Irish FinCo Unlimited Company
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
STERIS Corporation
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
STERIS Limited
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
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CALCULATION OF REGISTRATION FEE
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| Title of each class of securities to be registered |
Amount to be registered(1) |
Proposed maximum offering price per unit(1) |
Proposed maximum aggregate offering price(1) |
Amount of registration fee(2) | ||||
| Debt Securities |
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| Guarantees of Debt Securities(3) |
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| Ordinary Shares, par value $0.001 per share |
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| Preferred Shares, par value $0.001 per share |
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| Warrants |
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| Units |
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| (1) | There is being registered hereunder such indeterminate number or amount of debt securities, ordinary shares, preferred shares, warrants and units of STERIS plc, debt securities of STERIS Irish FinCo Unlimited Company and guarantees of each of STERIS plc, STERIS Irish FinCo Unlimited Company, STERIS Corporation and STERIS Limited of debt securities as may from time to time be issued at indeterminate prices and as may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable anti-dilution provisions. |
| (2) | The registrants are deferring payment of the registration fee pursuant to Rule 456(b) and are omitting this information in reliance on Rule 456(b) and Rule 457(r). |
| (3) | No separate consideration will be received for the guarantees of the debt securities being registered. In accordance with Rule 457(n) under the Securities Act, no registration fee is payable with respect to the guarantees. |
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Prospectus
STERIS PLC
Debt Securities
Guarantees of Debt Securities
Ordinary Shares
Preferred Shares
Warrants
Units
STERIS Irish FinCo Unlimited Company
Debt Securities
Guarantees of Debt Securities
STERIS Corporation
STERIS Limited
Guarantees of Debt Securities
STERIS plc, or any of its subsidiaries listed above, may from time to time offer and sell any of the securities identified above, or any combination thereof, in each case, in one or more series and in one or more offerings.
STERIS plc or any of its subsidiaries listed above will provide the specific terms of the securities to be offered in one or more supplements to this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest in our securities. This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement describing the method and terms of the offering of those offered securities.
STERIS plc or any of its subsidiaries listed above may sell these securities on a continuous or delayed basis, directly or to or through underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents that are included in a sale of securities to you, and any applicable commissions or discounts, will be stated in an accompanying prospectus supplement.
Investing in any of our securities involves risk. Please read carefully the section entitled “Risk Factors” on page 11 of this prospectus and any risk factors set forth in the applicable prospectus supplement and in the information included and incorporated by reference in this prospectus.
STERIS plc’s ordinary shares are listed on the New York Stock Exchange (the “NYSE”) under the symbol “STE.” If STERIS plc or any of its subsidiaries listed above decide to seek a listing of any securities offered by this prospectus, it will disclose the exchange or market on which the securities will be listed, if any, or where we have made an application for listing, if any, in one or more supplements to this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is March 23, 2021.
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may from time to time sell the following securities in one or more offerings at prices and on other terms to be determined at the time of offering:
| • | unsecured senior debt securities of STERIS plc or STERIS Irish FinCo Unlimited Company (“debt securities”), which may be either guaranteed or not guaranteed; |
| • | guarantees of debt securities by STERIS plc, STERIS Irish Finco Unlimited Company, STERIS Corporation and STERIS Limited (“guarantees”); |
| • | preferred shares, par value $0.001 per share, of STERIS plc (“preferred shares”); |
| • | ordinary shares, par value $0.001 per share, of STERIS plc (“ordinary shares”); |
| • | warrants to purchase debt securities, ordinary shares or preferred shares of STERIS plc (“warrants”); or |
| • | units comprising two or more of the debt securities (including any applicable guarantees), preferred shares, ordinary shares and warrants, in any combination listed on the cover page of this prospectus (“units”). |
This prospectus provides you with a general description of the securities we may offer. Each time we sell such securities, we will provide a prospectus supplement that will contain more specific information about the terms of that offering. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information under the headings “Where You Can Find More Information” and “Information We Incorporate By Reference.”
We have not authorized anyone to provide you with any information other than that contained or incorporated by reference in this prospectus and in any prospectus supplement or in any free writing prospectus that we may provide to you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. You should not assume that the information contained in this prospectus, any prospectus supplement or any document incorporated by reference is accurate as of any date other than the date mentioned on the cover page of these documents. We are not making offers to sell the securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
This document is not intended to be and is not a prospectus for purposes of: (i) Regulation (EU) 2017/1129 of the European Parliament and of the Council of June 14, 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (as amended) (the “EU Prospectus Regulation”), or the European Union (Prospectus) Regulations of Ireland 2019; or (ii) Regulation (EU) 2017/1129 as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018 of the United Kingdom (the “EUWA”), as amended by the Prospectus (Amendment) (EU Exit) Regulations 2019 of the United Kingdom (the “UK Prospectus Regulation”). The securities are not offered in any jurisdiction in circumstances that would require a prospectus to be prepared pursuant to the EU Prospectus Regulation or the UK Prospectus Regulation.
This document has not been reviewed or approved by the Central Bank of Ireland nor by any other competent or supervisory authority of any other member state of the European Economic Area or the United Kingdom for the purposes of the EU Prospectus Regulation, or the UK Prospectus Regulation, as applicable. No offer of securities to the public is being, or shall be, made in Ireland or any other member state of the European
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Economic Area or the United Kingdom on the basis of this document. Any investment in the securities does not have the status of a bank deposit in Ireland and is not within the scope of the deposit protection scheme operated by the Central Bank of Ireland. STERIS is not regulated by the Central Bank of Ireland by virtue of the issue of any securities.
PROHIBITION OF SALES TO EEA RETAIL INVESTORS - No securities are intended to be offered, sold or otherwise made available to or should be offered, sold or otherwise made available to any retail investor in the European Economic Area. For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended), or MiFID II; or (ii) a customer within the meaning of Directive (EU) 2016/97 (as amended) (the “Insurance Distribution Directive”) where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in the EU Prospectus Regulation. Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended) (the “PRIIPs Regulation”) for offering or selling the securities or otherwise making them available to retail investors in the European Economic Area has been prepared and therefore offering or selling the securities or otherwise making them available to any retail investor in the European Economic Area may be unlawful under the PRIIPs Regulation.
PROHIBITION OF SALES TO UK RETAIL INVESTORS - No securities are intended to be offered, sold or otherwise made available to or should be offered, sold or otherwise made available to any retail investor in the United Kingdom. For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client, as defined in point (7) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (ii) a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (as amended) (the “FSMA”) and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law of the United Kingdom by virtue of the EUWA; or (iii) not a qualified investor as defined in Article 2 of the UK Prospectus Regulation. Consequently no key information document required by Regulation (EU) No 1286/2014 as it forms part of domestic law of the United Kingdom by virtue of the EUWA, or the UK PRIIPs Regulation, for offering or selling the securities or otherwise making them available to retail investors in the United Kingdom has been prepared and therefore offering or selling the securities or otherwise making them available to any retail investor in the United Kingdom may be unlawful under the UK PRIIPs Regulation.
On March 28, 2019, upon the consummation of a Scheme of Arrangement under the laws of the United Kingdom in connection with a redomiciliation from the United Kingdom to Ireland (the “Redomiciliation”), STERIS plc became the parent company of the STERIS group of companies.
Unless otherwise stated or the context otherwise requires, in this prospectus we use the terms:
| • | “STERIS plc” to refer to STERIS plc, a public limited company incorporated under the laws of Ireland, and not any of its subsidiaries; |
| • | “STERIS Irish FinCo” to refer to STERIS Irish FinCo Unlimited Company, a public unlimited company incorporated under the laws of Ireland, and not any of its subsidiaries. STERIS Irish FinCo is an indirect wholly owned subsidiary of STERIS plc; |
| • | “STERIS Corporation” to refer to STERIS Corporation, an Ohio corporation, and not any of its subsidiaries. STERIS Corporation is an indirect wholly owned subsidiary of STERIS plc; |
| • | “STERIS Limited” to refer to STERIS Limited, a private limited company organized under the laws of England and Wales, and not any of its subsidiaries. STERIS Limited is an indirect wholly owned subsidiary of STERIS plc; |
| • | “STERIS,” “we,” “us,” “our” or other similar terms to refer to STERIS plc, together with its consolidated subsidiaries, including STERIS Irish FinCo, STERIS Corporation and STERIS Limited; |
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| • | the “securities” to refer collectively to the debt securities, ordinary shares, preferred shares, warrants and units offered by STERIS plc, the debt securities offered by STERIS Irish FinCo, and the guarantees offered by STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited; and |
| • | the “proposed transaction” to refer to the series of proposed transactions whereby Cantel Medical Corp. (“Cantel”) will become an indirect wholly owned subsidiary of STERIS plc pursuant to an agreement and plan of merger dated January 12, 2021, as amended (the “Merger Agreement”). |
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). STERIS plc files annual, quarterly and current reports, proxy statements and other information with the SEC. STERIS plc’s SEC filings are available over the Internet at the SEC’s website at www.sec.gov.
We make available, free of charge, on the Investor Relations page of our website at www.steris-ir.com, STERIS plc’s Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, proxy statements and amendments to those reports and statements as soon as reasonably practicable after they are filed with the SEC. The information contained on or accessible through our website is not part of this prospectus, other than the documents that we file with the SEC that are specifically incorporated by reference into this prospectus.
You will find additional information about us in the registration statement of which this prospectus forms a part. This prospectus and any prospectus supplement do not contain all of the information in the registration statement. Other documents establishing the terms of the offered securities are or may be filed as exhibits to the registration statement or documents incorporated by reference therein. Statements in this prospectus or any prospectus supplement about these documents are summaries, and each statement is qualified in all respects by reference to the document to which it refers. You should refer to the actual documents for a more complete description of the relevant matters. The full registration statement may be obtained through the SEC’s or our websites, as provided above.
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INFORMATION WE INCORPORATE BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in or omitted from this prospectus or any accompanying prospectus supplement, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the completion of the offering of securities described in this prospectus:
| • | STERIS plc’s Annual Report on Form 10-K for the year ended March 31, 2020, filed with the SEC on May 29, 2020; |
| • | STERIS plc’s Quarterly Reports on Form 10-Q for the quarter ended June 30, 2020, filed with the SEC on August 7, 2020, for the quarter ended September 30, 2020, filed with the SEC on November 6, 2020, and for the quarter ended December 31, 2020, filed with the SEC on February 9, 2021; |
| • | STERIS plc’s Current Reports on Form 8-K, filed with the SEC on August 3, 2020 (Items 5.02 and 5.07), October 6, 2020 (Item 1.01 and Item 9.01, excluding Exhibit No. 99.1), November 18, 2020 (Items 1.01, 2.03 and 9.01, excluding Exhibit 99.1), January 12, 2021, February 3, 2021, February 9, 2021 and March 23, 2021; |
| • | the description of ordinary shares contained in STERIS plc’s Registration Statement on Form 8-A filed with the SEC on March 27, 2019, including any amendments or reports filed for the purpose of updating such description, including Exhibit 4.1 to STERIS plc’s Annual Report on Form 10-K for the year ended March 31, 2020, filed with the SEC on May 29, 2020. |
This prospectus also incorporates by reference the following information that has previously been filed with the SEC by Cantel (File No. 001-31337):
| • | the following information in Cantel’s Annual Report on Form 10-K for the year ended July 31, 2020 (filed with the SEC on September 25, 2020): “Financial Statements and Supplementary Data” (appearing on pages 39–81); |
| • | the following information in Cantel’s Quarterly Reports on Form 10-Q for the quarter ended January 31, 2020 (filed with the SEC on March 6, 2020): “Financial Statements (unaudited)” (appearing on pages 1-20), quarter ended April 30, 2020 (filed with the SEC on June 9, 2020): “Financial Statements (unaudited)” (appearing on pages 1-25), October 31, 2020 (filed with the SEC on December 10, 2020): “Financial Statements (unaudited)” (appearing on pages 1–20) and the quarter ended January 31, 2021 (filed with the SEC on March 10, 2021): “Financial Statements (unaudited)” (appearing on pages 1–21); and |
| • | Cantel’s Current Reports on Form 8-K filed with the SEC on October 2, 2019 (as amended on December 16, 2019) and March 2, 2021. |
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We do not and will not, however, incorporate by reference in this prospectus any documents or portions thereof that are not deemed “filed” with the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of Current Reports on Form 8-K unless, and except to the extent, specified in such Current Reports. You may obtain copies of these filings without charge by accessing these documents on the Investor Relations page of our website at www.steris-ir.com or by requesting the filings in writing or by telephone at the following address and telephone number.
STERIS
Investor Relations
5960 Heisley Road
Mentor, Ohio 44060
Telephone Number: +1 440 354 2600
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the information we incorporate by reference, contains forward-looking statements within the meaning of the federal securities laws. Forward-looking statements speak only as to the date the statement is made and may be identified by the use of forward-looking terms such as “may,” “will,” “expects,” “believes,” “anticipates,” “plans,” “estimates,” “projects,” “targets,” “forecasts,” “outlook,” “impact,” “potential,” “confidence,” “improve,” “optimistic,” “deliver,” “orders,” “backlog,” “comfortable,” “trend”, and “seeks,” or the negative of such terms or other variations on such terms or comparable terminology. These forward-looking statements are based on our management’s current expectations, estimates or forecasts about our businesses, the industries in which we operate and current beliefs and assumptions of management and are subject to uncertainty and changes in circumstances. Readers of this prospectus should understand that these statements are not guarantees of performance or results. Many important factors could affect actual financial results and cause them to vary materially from the expectations contained in the forward-looking statements, including those set forth in this prospectus. No assurances can be provided as to any result or the timing of any outcome regarding matters described in STERIS’s securities filings or otherwise with respect to any regulatory action, administrative proceedings, government investigations, litigation, warning letters, cost reductions, business strategies, earnings or revenue trends or future financial results. Unless legally required, STERIS does not undertake to update or revise any forward-looking statements even if events make clear that any projected results, express or implied, will not be realized. These risks and uncertainties that could cause actual results to differ materially from those in the forward-looking statements include, without limitation:
| • | the failure to obtain approval of stockholders of Cantel for the proposed transaction; |
| • | the possibility that the closing conditions to the proposed transaction may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant a necessary regulatory approval and any conditions imposed on the combined entity in connection with consummation of the proposed transaction; |
| • | delay in closing the proposed transaction or the possibility of non-consummation of the proposed transaction; |
| • | the risk that the cost savings and any other synergies from the proposed transaction may not be fully realized or may take longer to realize than expected, including that the proposed transaction may not be accretive within the expected timeframe or to the extent anticipated; |
| • | the occurrence of any event that could give rise to termination of the Agreement and Plan of Merger dated January 12, 2021, as amended, for the proposed transaction; |
| • | the risk that shareholder/stockholder litigation in connection with the proposed transaction may affect the timing or occurrence of the proposed transactions or result in significant costs of defense, indemnification and liability; |
| • | risks related to the disruption of the proposed transaction to us; |
| • | risks relating to the value of ordinary shares to be issued in the proposed transaction; |
| • | the effect of announcement of the proposed transaction on our ability to retain and hire key personnel and maintain relationships with customers, suppliers and other third parties; |
| • | the impact of the COVID-19 pandemic on our or Cantel’s operations, performance, results, prospects, or value; |
| • | our ability to achieve the expected benefits regarding the accounting and tax treatments of the Redomiciliation; |
| • | our ability to achieve the expected benefits regarding the accounting and tax treatments of the proposed transaction; |
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| • | operating costs, Customer loss and business disruption (including, without limitation, difficulties in maintaining relationships with employees, Customers, clients or suppliers) being greater than expected following the Redomiciliation; |
| • | our ability to meet expectations regarding the accounting and tax treatment of the Tax Cuts and Jobs Act (the “TCJA”) or the possibility that anticipated benefits resulting from the TCJA will be less than estimated; |
| • | changes in tax laws or interpretations that could increase our consolidated tax liabilities, including changes in tax laws that would result in us being treated as a domestic corporation for United States federal tax purposes; |
| • | the potential for increased pressure on pricing or costs that leads to erosion of profit margins; |
| • | the possibility that market demand will not develop for new technologies, products or applications or services, or business initiatives will take longer, cost more or produce lower benefits than anticipated; |
| • | the possibility that application of or compliance with laws, court rulings, certifications, regulations, regulatory actions, including without limitation any of the same relating to FDA, EPA or other regulatory authorities, government investigations, the outcome of any pending or threatened FDA, EPA or other regulatory warning or untitled letter, notices, actions, requests, inspections or submissions, or other requirements or standards may delay, limit or prevent new product or service introductions, affect the production, supply and/or marketing of existing products or services or otherwise affect our or Cantel’s performance, results, prospects or value; |
| • | the potential of international unrest, economic downturn or effects of currencies, tax assessments, tariffs and/or other trade barriers, adjustments or anticipated rates, raw material costs or availability, benefit or retirement plan costs, or other regulatory compliance costs; |
| • | the possibility of reduced demand, or reductions in the rate of growth in demand, for our or Cantel’s products and services; |
| • | the possibility of delays in receipt of orders, order cancellations, or delays in the manufacture or shipment of ordered products or in the provision of services; |
| • | the possibility that anticipated growth, cost savings, new product acceptance, performance or approvals, or other results may not be achieved, or that transition, labor, competition, timing, execution, regulatory, governmental, or other issues or risks associated with our and Cantel’s businesses, industry or initiatives including, without limitation, those matters described in STERIS plc’s Annual Report on Form 10-K for the year ended March 31, 2020 and other securities filings, may adversely impact our and/or Cantel’s performance, results, prospects or value; |
| • | the impact on us and our operations, or tax liabilities, of Brexit or the exit of other member countries from the EU, and our ability to respond to such impacts; |
| • | the impact on us and our operations of any legislation, regulations or orders, including but not limited to any new trade or tax legislation, regulations or orders, that may be implemented by the U.S. administration or Congress, or of any responses thereto; |
| • | the possibility that anticipated financial results or benefits of recent acquisitions, including the acquisition of Key Surgical, or of our restructuring efforts, or of recent divestitures, or of restructuring plans will not be realized or will be other than anticipated; |
| • | the effects of contractions in credit availability, as well as the ability of our and Cantel’s Customers and suppliers to adequately access the credit markets when needed; |
| • | our ability to complete the proposed transaction, including the fulfillment of closing conditions and obtaining financing, on terms satisfactory to us or at all; and |
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| • | other risks described in STERIS plc’s most recent Annual Report on Form 10-K and other reports filed with the SEC. |
Readers are cautioned not to place undue reliance on any forward-looking statements included in this prospectus, which speak only as of the date of this prospectus. We undertake no obligation to update or revise any forward-looking statement, whether as a result of new information, future developments or otherwise, except as required by applicable law. This cautionary statement is applicable to all forward-looking statements contained in this prospectus.
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STERIS plc is a public limited company incorporated under the laws of Ireland on December 22, 2016. It became the parent company of the STERIS group of companies on March 28, 2019, in connection with the Redomiciliation. STERIS plc’s registered office is located in Dublin, Ireland and STERIS’s U.S. administrative offices are located in Mentor, Ohio.
STERIS Irish FinCo is a public unlimited company incorporated under the laws of Ireland on October 21, 2015. STERIS Corporation is an Ohio corporation incorporated under the laws of the State of Ohio on August 9, 1985. STERIS Limited is a private limited company that was incorporated under the laws of England and Wales on October 9, 2014. Each of STERIS Irish FinCo, STERIS Corporation and STERIS Limited is an indirect wholly owned subsidiary of STERIS plc. See “About this Prospectus,” “Where You Can Find More Information” and “Information We Incorporate by Reference.”
STERIS is a leading provider of infection prevention and other procedural products and services. STERIS offers its Customers a unique mix of innovative capital equipment products, such as sterilizers and washers, surgical tables, lights and equipment management systems and connectivity solutions such as operating room integration; consumable products including detergents and gastrointestinal endoscopy accessories and other products and services, including equipment installation and maintenance, microbial reduction of medical devices, instrument and scope repair solutions, laboratory services and outsourced instrument reprocessing. STERIS is segmented by Customer, with three reporting segments: Healthcare, Applied Sterilization Technologies (“AST”) and Life Sciences. Through these three segments STERIS serves hospitals and surgery centers, medical device manufacturers and pharmaceutical manufacturers.
STERIS plc’s ordinary shares are listed on the NYSE, trading under the symbol “STE.”
STERIS plc’s registered office is located at 70 Sir John Rogerson’s Quay, Dublin 2 Ireland D02 R296, main telephone number is +353 1 232 2000, and website address is www.steris.com. The information contained on or accessible through our website is not part of this prospectus, other than the documents that we file with the SEC that are incorporated by reference in this prospectus.
On January 12, 2021, STERIS plc and certain of its affiliates entered into the Merger Agreement with Cantel that contemplates a series of mergers whereby Cantel and its subsidiaries will become indirect wholly owned subsidiaries of STERIS plc. The consummation of the proposed transaction is subject to customary closing conditions, including (a) the approval of Merger Agreement by holders of a majority of Cantel Common Stock (as defined herein) and (b) the receipt of certain governmental and regulatory approvals, including receipt of requisite clearances under antitrust and foreign direct investment laws.
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Investing in any of our securities involves risk. Prior to making a decision about investing in any of our securities, you should carefully consider the risk described below in addition to the specific factors discussed under the heading “Risk Factors” in STERIS plc’s most recent Annual Report on Form 10-K filed with the SEC, in each case as these risk factors are amended or supplemented by subsequent Quarterly Reports on Form 10-Q and current reports on Form 8-K, which have been or will be incorporated by reference into this prospectus. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties that are not yet identified may also materially harm our business, operating results and financial condition, and could result in a complete loss of your investment.
Risk Relating to Pro Forma Financial Data
The pro forma financial data included in this prospectus is not necessarily indicative of the actual financial position or results of operations of STERIS plc following the completion of the proposed transaction. Future results of STERIS plc or Cantel may differ, possibly materially, from those suggested by the pro forma financial data included in this prospectus.
The pro forma financial data contained in this prospectus includes a variety of adjustments, assumptions and preliminary estimates and do not represent the actual financial position or results of operations of STERIS plc and Cantel prior to the proposed transaction or that of STERIS plc after completion of the proposed transaction for several reasons. Specifically, we have not completed the detailed valuation analyses to arrive at the final estimates of the fair values of the assets to be acquired and liabilities to be assumed and the related allocation of purchase price and the pro forma financial data does not reflect the effects of transaction-related costs and integration costs. In addition, the proposed transaction and post-merger integration process may give rise to unexpected liabilities and costs, including costs associated with the defense and resolution of transaction-related litigation or other claims. Unexpected delays in completing the proposed transaction or in connection with the post-merger integration process may significantly increase the related costs and expenses incurred by STERIS plc. The actual financial positions and results of operations of STERIS plc and Cantel prior to the proposed transaction and that of STERIS plc after completion of the proposed transaction may be different, possibly materially, from those suggested by the pro forma financial data included in this prospectus. In addition, the assumptions used in preparing the pro forma financial data included in this prospectus may not prove to be accurate and may be affected by other factors. Any significant changes in the market price of STERIS plc’s ordinary shares may cause a significant change in the purchase price used for STERIS plc’s accounting purposes and pro forma financial data contained in this prospectus.
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SUPPLEMENTAL ISSUER AND GUARANTOR FINANCIAL INFORMATION
STERIS Irish FinCo, STERIS Corporation and STERIS Limited, wholly-owned subsidiaries of STERIS plc, may jointly and severally provide full and unconditional guarantees of the obligations of STERIS plc under debt securities it may issue. Furthermore, STERIS plc, STERIS Limited and STERIS Corporation may jointly and severally provide full and unconditional guarantees of the obligations of STERIS Irish FinCo under debt securities it may issue. The debt securities and the related guarantees will be senior unsecured obligations of STERIS plc, STERIS Irish FinCo and each of the guarantors, respectively and as applicable, and will be equal in priority with all other senior, unsubordinated indebtedness of STERIS plc, STERIS Irish FinCo and the guarantors, respectively and as applicable, from time to time outstanding.
The obligations of a guarantor under its guarantee will be limited to the extent necessary to prevent the obligations of such guarantor from constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each guarantor that makes a payment under its guarantee will be entitled upon payment in full of all guaranteed obligations under the applicable indenture to a contribution from each other guarantor in an amount equal to such other guarantor’s pro rata portion of such payment based on the respective net assets of all the guarantors at the time of such payment determined in accordance with U.S. generally accepted accounting principles. The ability of STERIS plc’s subsidiaries to pay dividends, interest and other fees to STERIS plc and/or STERIS Irish FinCo, and ability of STERIS plc and/or STERIS Irish FinCo and the applicable guarantors to service the debt securities may be restricted by, among other things, corporate and other laws and regulations as well as agreements to which our subsidiaries are or may become a party.
The following tables present (a) summarized results of operations for the nine months ended December 31, 2020 and twelve months ended March 31, 2020 and (b) summarized balance sheet information at December 31, 2020 and March 31, 2020, respectively, for STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited. The summarized financial information is presented after elimination of (i) intercompany transactions and balances among STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited and (ii) equity in earnings from and investments in any subsidiary of STERIS plc, other than STERIS Irish FinCo, STERIS Corporation and STERIS Limited, which transactions have been presented separately.
| Summarized results of operations (dollars in thousands) |
Nine months ended December 31, 2020 |
Twelve months ended March 31, 2020 |
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| Revenues |
$ | 1,113,469 | $ | 1,510,013 | ||||
| Gross profit |
676,301 | 918,781 | ||||||
| Operating costs arising from transactions with non-issuers and non-guarantors – net(1) |
267,201 | 355,892 | ||||||
| Income from operations |
305,261 | 496,174 | ||||||
| Non-operating income arising from transactions with subsidiaries that are non-issuers and non-guarantors—net(1) |
184,661 | 1,319,420 | ||||||
| Net income |
266,718 | 437,685 | ||||||
| Summarized balance sheet information (dollars in thousands) |
December 31, 2020 |
March 31, 2020 |
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| Receivables due from non-issuers and non-guarantor subsidiaries(1) |
$ | 13,432,149 | $ | 12,561,220 | ||||
| Other current assets |
305,977 | 436,088 | ||||||
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| Total current assets |
$ | 13,738,126 | $ | 12,997,308 | ||||
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| Summarized balance sheet information (dollars in thousands) |
December 31, 2020 |
March 31, 2020 |
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| Non-current receivables due from non-issuers and non-guarantor subsidiaries(1) |
$ | 1,156,809 | $ | 1,175,184 | ||||
| Goodwill |
94,979 | 86,554 | ||||||
| Other non-current assets |
202,309 | 196,943 | ||||||
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| Total non-current assets |
$ | 1,454,097 | $ | 1,458,681 | ||||
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| Payables due to non-issuers and non-guarantor subsidiaries(1) |
$ | 14,728,632 | $ | 13,597,082 | ||||
| Other current liabilities |
171,914 | 192,637 | ||||||
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| Total current liabilities |
$ | 14,900,546 | $ | 13,789,719 | ||||
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| Non-current payables due to non-issuers and non-guarantor subsidiaries(1) |
$ | 135,474 | $ | 148,473 | ||||
| Other non-current liabilities |
1,766,195 | 1,203,001 | ||||||
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| Total non-current liabilities |
$ | 1,901,669 | $ | 1,351,474 | ||||
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| (1) | Includes amounts due from, amounts due to, and transactions with subsidiaries of STERIS plc (other than transactions between STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited). Intercompany balances and transactions between STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited have been eliminated. Intercompany transactions arise from internal financing and trade activities. |
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Unless we inform you otherwise in the applicable prospectus supplement, we expect to use the net proceeds from the sale of our securities to which this prospectus relates for general corporate purposes. These purposes may include, but are not limited to:
| • | reduction, repayment or refinancing of outstanding indebtedness or other obligations; |
| • | repurchase or redemption of securities; |
| • | additions to working capital; |
| • | capital expenditures; |
| • | acquisitions; and |
| • | strategic investments. |
Pending any specific application, we may initially invest funds in short-term, interest-bearing obligations or apply them to the reduction of short-term indebtedness.
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of the debt securities that STERIS plc and STERIS Irish FinCo may issue. The particular terms of the debt securities offered will be set forth in a prospectus supplement and the extent, if any, to which the following general terms and provisions will apply to particular debt securities.
STERIS plc may issue debt securities under an indenture (the “STERIS plc indenture”) among STERIS plc, as issuer, the applicable guarantors, if any, and U.S. Bank National Association (“U.S. Bank”) as trustee. The debt securities issued under the STERIS plc indenture will be direct, senior unsecured obligations of STERIS plc and will rank equally with all of STERIS plc’s other senior unsecured indebtedness.
STERIS Irish FinCo may issue debt securities under an indenture (the “STERIS Irish FinCo indenture”) among STERIS Irish FinCo, as issuer, the applicable guarantors, if any, and U.S. Bank, as trustee. The debt securities issued under the STERIS Irish FinCo indenture will be direct, senior unsecured obligations of STERIS Irish FinCo and will rank equally with all of STERIS Irish FinCo’s other senior unsecured indebtedness. Each of the STERIS plc indenture and the STERIS Irish FinCo indenture are referred to in this section as an indenture.
Each indenture, and any supplemental indentures thereto, will be subject to, and governed by, the Trust Indenture Act of 1939, as amended. The following description of general terms and provisions relating to the debt securities and each indenture under which the debt securities will be issued is a summary only and therefore is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of the applicable indenture. A copy of the applicable indenture, and any applicable supplement thereto, will be filed with the SEC upon the issuance of debt securities, and you should read the applicable indenture, and any applicable supplements thereto, for provisions that may be important to you. For more information on how you can obtain a copy of the form of an applicable indenture, if and when it is filed, see “Where You Can Find More Information.”
When we refer to “we,” “us,” or “our” in this section, we mean STERIS plc or STERIS Irish FinCo, excluding, unless the context otherwise requires or as otherwise expressly stated, other subsidiaries of STERIS plc.
General
The terms of each series of debt securities will be established by or pursuant to one or more resolutions of the board of directors of STERIS plc or STERIS Irish FinCo or committees established by such board of directors, and set forth or determined in the manner provided in such resolutions, supplemental indenture or officers’ certificate. The particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
Each of STERIS plc and STERIS Irish FinCo can issue an unlimited amount of debt securities under the applicable indenture that may be in one or more series. Debt securities may differ between series in respect to any matter, but all series of debt securities issued under an indenture will be equally and ratably entitled to the benefits of the indenture. We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
| • | the name of the issuer of the debt securities and the names of any guarantors providing guarantees; |
| • | the title of the series of debt securities; |
| • | the price or prices (expressed as a percentage of the principal amount) at which the series of debt securities will be issued; |
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| • | any limit upon the aggregate principal amount of the series of debt securities; |
| • | the date or dates on which the principal and premium, if any, of the series of debt securities is payable; |
| • | the rate or rates (which may be fixed or variable) per annum at which the series of debt securities will bear interest or the manner of calculation of such rate or rates, if any (including any procedures to vary or reset such rate or rates), and the basis upon which interest will be calculated if other than that of a 360 day year of twelve 30-day months; |
| • | the date or dates from which such interest will accrue, the date or dates on which such interest will commence and be payable and the regular record date for the determination of holders of the series of debt securities to whom interest is payable on any such interest payment dates; |
| • | any trustees, authenticating agents or paying agents with respect to the series of debt securities; |
| • | the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension or deferral; |
| • | if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the series of debt securities may be redeemed, in whole or in part, at STERIS plc’s or STERIS Irish FinCo’s option; |
| • | any obligation STERIS plc or STERIS Irish FinCo may have to redeem, purchase or repay the series of debt securities pursuant to any sinking fund or analogous provisions (including payments made in cash in anticipation of future sinking fund obligations) or at the option of a holder of the series of debt securities and the period or periods within which, the price or prices at which, and the terms and conditions upon which, debt securities of the series will be redeemed, repurchased or repaid, in whole or in part, pursuant to such obligation; |
| • | the form of the series of debt securities and whether the series of debt securities will be issuable as global debt securities and any appropriate legends if the debt securities are discount securities; |
| • | the denominations in which the series of debt securities will be issued, provided however, that any series of debt securities of STERIS Irish FinCo shall only be offered or allotted in minimum denominations, or for a minimum total consideration per investor, of at least €100,000 (or, if offered in another currency, the equivalent thereof) or as otherwise permitted by section 68(3) of the Companies Act 2014 of Ireland, as amended; |
| • | the currency or currencies in which payment of, premium, if any, and interest on, the series of debt securities will be payable; |
| • | if the principal amount payable at the maturity date of the series of debt securities will not be determinable as of any one or more dates prior to such maturity date, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the maturity date or which will be deemed to be outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined); |
| • | the terms of any repurchase or remarketing rights; |
| • | if the debt securities of the series will be issued in whole or in part in the form of a global security or securities, the type of global security to be issued; the terms and conditions if different from those contained in the indenture, upon which such global security or securities may be exchanged in whole or in part for other individual securities in definitive registered form; the depositary for such global security or securities; and the form of any legend or legends to be borne by any such global security or securities in addition to or in lieu of the legends referred to in the indenture; |
| • | whether the securities of the series will be convertible into or exchangeable for other securities, common shares or other securities of any kind of STERIS Irish FinCo or another obligor, and, if so, the |
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| terms and conditions upon which such securities will be so convertible or exchangeable including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the holder or STERIS Irish FinCo’s option, the conversion or exchange period, and any other provision in addition to or in lieu of those described therein; |
| • | the portion of principal amount of the series of debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount thereof; |
| • | any additional restrictive covenants or events of default that apply to the series of debt securities and the rights of the trustee or the requisite holders of the series of debt securities to declare the principal amount thereof due and payable; |
| • | any provisions granting special rights to holders when a specified event occurs; |
| • | the manner in which the amounts of payment of principal, of any premium or interest, if any, on the series of debt securities will be determined, if such amounts may be determined by reference to an index pursuant to a formula, the manner in which such amounts will be determined; |
| • | any special tax implications of the debt securities of a series, including provisions for original issue discount securities, if offered; |
| • | whether and upon what terms debt securities of a series may be defeased if different from the provisions set forth in the indenture; |
| • | with regard to the debt securities of any series that do not bear interest, the dates for certain required reports to the Trustee; |
| • | whether the series of debt securities will be issued as unrestricted securities or restricted securities, and, if issued as restricted securities, the rule or regulation promulgated under the Securities Act of 1933, as amended (the “Securities Act”) in reliance on which they will be sold; |
| • | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the series of debt securities, if other than appointed in the indenture; |
| • | any provisions relating to conversion of the series of debt securities (including price, period, whether such conversion is mandatory or is at the option of the holders or at STERIS plc’s or STERIS Irish FinCo’s option, events requiring an adjustment of conversion price, and provisions affecting conversion of the series of debt securities redeemed); and |
| • | any other material terms of the series of debt securities. |
In addition, neither indenture will limit STERIS plc’s or STERIS Irish FinCo’s ability to issue subordinated debt securities.
Each of STERIS plc and STERIS Irish FinCo may issue debt securities that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these debt securities in the applicable prospectus supplement.
If the purchase price of any of the debt securities is denominated in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus supplement.
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Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, as depositary (the “Depositary”), or a nominee (we will refer to any debt security represented by a global debt security as a book-entry debt security), or a certificate issued in definitive registered form (we will refer to any debt security represented by a certificated security as a certificated debt security) as set forth in the applicable prospectus supplement. Except as set forth under the heading “—Global Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the applicable indenture. No service charge will be made for any transfer or exchange of certificated debt securities (except as expressly permitted under the indenture), but payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange will be required.
You may effect the transfer of certificated debt securities and the right to receive the principal of and interest on certificated debt securities only by surrendering the certificate representing those certificated debt securities and either reissuance by STERIS plc or STERIS Irish FinCo, as applicable, of the certificate to the new holder or the issuance by STERIS plc or STERIS Irish FinCo, as applicable, of a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing book-entry debt securities will be issued to the Depositary or a nominee of the Depositary and registered in the name of the Depositary or a nominee of the Depositary.
The Depositary has advised us that it is:
| • | a limited purpose trust company organized under the laws of the State of New York; |
| • | a “banking organization” within the meaning of the New York State Banking Law; |
| • | a member of the Federal Reserve System; |
| • | a “clearing corporation” within the meaning of the New York Uniform Commercial Code; and |
| • | a “clearing agency” registered under section 17A of the Exchange Act. |
As a result, each investor who owns a beneficial interest in a global debt security must rely on the procedures of the Depositary to exercise any rights of a holder of debt securities under the applicable indenture (and, if the investor is not a participant or an indirect participant in the Depositary, on the procedures of the Depositary participant through which the investor owns its interest).
The Depositary has indicated it intends to follow the following procedures with respect to book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will be limited to persons that have accounts with the Depositary for the related global debt security, which we refer to as participants, or persons that may hold interests through participants. Upon the issuance of a global debt security, the Depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the book-entry debt securities represented by such global debt security beneficially owned by such participants. The accounts to be credited will be designated by any dealers, underwriters or agents participating in the distribution of the book-entry debt securities. Ownership of book-entry debt securities will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the Depositary for the related global debt security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants). The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may impair the ability to own, transfer or pledge beneficial interests in book-entry debt securities.
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So long as the Depositary for a global debt security, or its nominee, is the registered owner of that global debt security, the Depositary or its nominee, as the case may be, will be considered the sole owner or holder of the book-entry debt securities represented by such global debt security for all purposes under the indenture. Except as described below, beneficial owners of book-entry debt securities will not be entitled to have securities registered in their names, will not receive or be entitled to receive physical delivery of a certificate in definitive form representing securities and will not be considered the owners or holders of those securities under the indenture. Accordingly, each person beneficially owning book-entry debt securities must rely on the procedures of the Depositary for the related global debt security and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under the indenture.
We understand, however, that under existing industry practice, the Depositary will authorize the persons on whose behalf it holds a global debt security to exercise certain rights of holders of debt securities, and the applicable indenture will provide that each of STERIS plc and STERIS Irish FinCo, as applicable, the trustee and their respective agents will treat as the holder of a debt security the persons specified in a written statement of the Depositary with respect to such global debt security for purposes of obtaining any consents, declarations, waivers or directions required to be given by holders of the debt securities pursuant to the applicable indenture.
Each of STERIS plc or STERIS Irish FinCo, as applicable, will make payments of principal of, and premium and interest, if any, on book-entry debt securities to the Depositary or its nominee, as the case may be, as the registered holder of the related global debt security. Each of STERIS plc and STERIS Irish FinCo, as applicable, the trustee and any other agent of theirs or agent of the trustee will not have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to beneficial ownership interests.
We expect that the Depositary, upon receipt of any payment of principal of, premium or interest, if any, on a global debt security, will immediately credit participants’ accounts with payments in amounts proportionate to the respective amounts of book-entry debt securities held by each participant as shown on the records of such Depositary. We also expect that payments by participants to owners of beneficial interests in book-entry debt securities held through those participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
Cross-market transfers between the Depositary participants, on the one hand, and Euroclear Bank SA/NV (“Euroclear”) or Clearstream Banking, société anonyme, Luxembourg (“Clearstream”) participants, on the other hand, will be effected within the Depositary through the Depositary participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an interest in a global debt security held in a Euroclear or Clearstream account, an investor must send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of that system. If the transaction meets its settlement requirements, Euroclear or Clearstream, as the case may be, will send instructions to its depositary at the Depositary to take action to effect final settlement by delivering or receiving interests in the relevant global debt securities in the Depositary, and making or receiving payment under normal procedures for same-day funds settlement applicable to the Depositary. Euroclear and Clearstream participants may not deliver instructions directly to the depositaries at the Depositary that are acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant that purchases an interest in a global debt security from a Depositary participant will be credited on the business day for Euroclear or Clearstream immediately following the Depositary settlement date. Cash received in Euroclear or Clearstream from the sale of an interest in a global debt security to a Depositary participant will be received with value on the Depositary settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the Depositary settlement date.
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The Depositary, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in global debt securities among participants in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we nor the trustee will have any responsibility for the performance by the Depositary, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.
Each of STERIS plc and STERIS Irish FinCo, as applicable, will issue certificated debt securities in exchange for each applicable global debt security only if (i) the Depositary notifies them that it is unwilling or unable to continue as Depositary for such global debt security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, STERIS plc or STERIS Irish FinCo, as applicable, fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) STERIS plc or STERIS Irish FinCo, as applicable, executes and delivers to the trustee an officers’ certificate to the effect that such global debt security shall be so exchangeable. Any certificated debt securities issued in exchange for a global debt security will be registered in such name or names as the Depositary shall instruct the trustee. We expect that such instructions will be based upon directions received by the Depositary from participants with respect to ownership of book-entry debt securities relating to such global debt security.
We have obtained the foregoing information concerning the Depositary and the Depositary’s book-entry system from sources we believe to be reliable, but neither we, the trustee nor any underwriters, dealers or agents take responsibility for the accuracy of this information.
Regarding the Trustee
Each of STERIS plc and STERIS Irish FinCo may have commercial deposits and custodial arrangements with U.S. Bank and may have borrowed money from U.S. Bank in the normal course of business. Each of STERIS plc and STERIS Irish FinCo may enter into similar or other banking relationships with U.S. Bank in the future in the normal course of business. U.S. Bank may also act as trustee with respect to other debt securities STERIS plc or STERIS Irish FinCo, or both of them, have issued.
U.S. Bank will be serving as the trustee under each indenture. Consequently, if an actual or potential event of default occurs with respect to the debt securities, U.S. Bank may be considered to have a conflicting interest for purposes of the Trust Indenture Act. In that case, U.S. Bank may be required to resign under one or more indentures, and each of STERIS plc and STERIS Irish FinCo, as applicable, and, if applicable, any guarantors, would be required to appoint a successor trustee. For this purpose, a “potential” event of default means an event that would be an event of default if the requirements for giving default notice or for the default having to exist for a specific period of time were disregarded.
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DESCRIPTION OF GUARANTEES OF OUR DEBT SECURITIES
Each prospectus supplement will describe any guarantees of debt securities for the benefit of the series of debt securities to which it relates. If so provided in a prospectus supplement, the debt securities will be guaranteed, jointly and severally, by each of the guarantors named in such prospectus supplement on a senior unsecured basis. The obligations of a guarantor under its guarantee will be limited to the extent necessary to prevent the obligations of such guarantor from constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
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The following is a summary of the terms and provisions of STERIS plc’s share capital. The rights of STERIS plc shareholders are governed by the laws of Ireland and STERIS plc’s Amended Memorandum and Articles of Association, as amended (the “STERIS Constitution”). This summary is qualified by reference to STERIS plc’s governing corporate instruments to which we have referred you and applicable provisions of Irish law. To obtain a copy of the STERIS Constitution, see “Where You Can Find More Information.” When we refer to “we,” “us,” or “our” in this section, we mean STERIS plc, excluding, unless the context otherwise requires or as otherwise expressly stated, its subsidiaries.
Capital Structure
The rights of and restrictions applicable to the ordinary shares are prescribed in the STERIS Constitution, subject to the Companies Act 2014 of Ireland (as amended or superseded from time to time) (the “Irish Companies Act”).
Authorized Share Capital
STERIS plc has an authorized share capital of (1) $550,000 divided into (a) 500,000,000 ordinary shares of $0.001 each and (b) 50,000,000 preferred shares of $0.001 each, plus (2) €25,000 divided into 25,000 deferred ordinary shares of €1.00 each.
The authorized share capital of €25,000 divided into 25,000 deferred ordinary shares of €1.00 each listed above has been allotted in order to satisfy minimum statutory capital requirements for all Irish public limited companies. Any holder of these deferred ordinary shares is not entitled to receive any dividend or distribution, to attend, speak or vote at any general meeting, and has no effective rights to participate in the assets of STERIS plc.
Under the STERIS Constitution, STERIS plc may issue shares up to its maximum authorized share capital. The authorized share capital may be increased or reduced by a resolution approved by a simple majority of the votes cast at a general meeting of the shareholders, referred to under Irish law as an “ordinary resolution”.
Under Irish law, the directors of a company may issue new ordinary or preferred shares without shareholder approval once authorized to do so by the constitution or by an ordinary resolution adopted by the shareholders at a general meeting. The authorization may be granted for a maximum period of five years, at which point it must be renewed by the shareholders by an ordinary resolution. The STERIS Constitution authorizes our board of directors, or our Board, to allot shares of STERIS plc with an aggregate par value amount up to the maximum of its authorized but unissued share capital without shareholder approval until March 27, 2024. The authority to issue preferred shares provides us with the flexibility to consider and respond to future business needs and opportunities as they arise from time to time, including in connection with capital raising, financing and acquisition transactions or opportunities.
Under the STERIS Constitution, our Board is authorized to issue preferred shares on a non-pre-emptive basis, with discretion as to the terms attaching to the preferred shares, including as to voting, dividend and conversion rights and priority relative to other classes of shares with respect to dividends and upon a liquidation. As described in the preceding paragraph, this authority extends until March 27, 2024, at which time it will expire unless renewed by our shareholders.
The STERIS Constitution permits our Board, without shareholder approval, to determine the terms of any preferred shares that we may issue.
Irish law does not recognize fractional shares held of record. Accordingly, the STERIS Constitution does not provide for the issuance of fractional ordinary shares, and our official Irish share register does not reflect any fractional shares.
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Under the STERIS Constitution, subject to the Irish Companies Act, our Board (or an authorized committee of our Board) is authorized to approve the allotment, issue, grant and disposal of, or otherwise deal with, shares, options, equity awards, rights over shares, warrants, other securities and derivatives (including unissued shares) in or of STERIS plc to such persons, at such times and on such terms as it thinks fit (including specifying the conditions of allotment of shares for the purposes of the Irish Companies Act).
Preemptive Rights
Under Irish law, certain statutory preemption rights apply automatically in favor of shareholders where shares are to be issued for cash. However, STERIS plc has opted to dis-apply these preemption rights in the STERIS Constitution in respect of shares of STERIS plc with an aggregate par value amount up to the maximum of its authorized but unissued share capital.
Irish law requires this disapplication to be renewed at least every five years by 75% of the votes cast at a general meeting of shareholders, referred to under Irish law as a “special resolution”. If the disapplication is not renewed, shares issued for cash must be offered to existing shareholders of STERIS plc on a pro rata basis to their existing shareholdings before the shares may be issued to any new shareholders.
Statutory preemption rights do not apply: (i) where shares are issued for non-cash consideration (such as in a stock-for-stock acquisition), (ii) to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution) or (iii) where shares are issued pursuant to an employee stock option or similar equity plan.
Dividends
Under Irish law, STERIS plc is able to declare dividends and make distributions only out of “distributable profits”. Distributable profits are the accumulated realized profits of STERIS plc that have not previously been utilized in a distribution or capitalization less accumulated realized losses that have not previously been written off in a reduction or reorganization of capital, and include reserves created by way of a reduction of capital. In addition, no distribution or dividend may be paid or made by STERIS plc unless the net assets of STERIS plc are equal to, or exceed, the aggregate of STERIS plc’s called up share capital plus its undistributable reserves and the distribution does not reduce STERIS plc’s net assets below such aggregate. Undistributable reserves include the undenominated capital, the capital redemption reserve fund and the amount by which STERIS plc’s accumulated unrealized profits that have not previously been utilized by any capitalization exceed STERIS plc’s accumulated unrealized losses that have not previously been written off in a reduction or reorganization of capital.
The determination as to whether STERIS plc has sufficient distributable profits to fund a dividend must be made by reference to its “relevant financial statements.” The “relevant financial statements” will be either the last set of unconsolidated annual audited financial statements or other financial statements properly prepared in accordance with the Irish Companies Act, which give a “true and fair view” of STERIS plc’s unconsolidated financial position and accord with accepted accounting practice.
The mechanism as to who declares a dividend and when a dividend shall become payable is governed by the STERIS Constitution. The STERIS Constitution authorizes our Board to declare interim dividends without shareholder approval if it considers that the financial position of STERIS plc justifies such payment. Our Board may also recommend a dividend to be approved and declared by the shareholders at a general meeting. No dividend issued may exceed the amount recommended by our Board. The STERIS Constitution provides that dividends may be paid in cash, property or paid-up shares.
Except as otherwise provided by the rights attached to the shares, all shares will carry a pro rata entitlement to the receipt of dividends. Unless provided for by the rights attached to an ordinary share, no dividend or other monies payable by STERIS plc in respect of an ordinary share shall bear interest.
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If a dividend cannot be paid to a STERIS plc shareholder or otherwise remains unclaimed, our Board may pay it into a separate STERIS plc account and STERIS plc will not be a trustee in respect thereof. A dividend that remains unclaimed for a period of twelve years after the payment date will be forfeited and will revert to STERIS plc.
Share Repurchases, Redemptions and Conversions
Repurchases and Redemptions
The STERIS Constitution provides that STERIS plc may purchase its own shares and redeem outstanding redeemable shares. Under Irish law, shares can only be purchased or redeemed out of: (i) distributable reserves; or (ii) the proceeds of a new issue of shares made for the purpose of the purchase or redemption.
Under the Irish Companies Act, a company may purchase its own shares either (i) “on-market” on a recognized stock exchange, which includes the NYSE; or (ii) “off-market” (i.e., otherwise than on a recognized stock exchange).
For STERIS plc to make “on-market” purchases of its ordinary shares, shareholders must provide general authorization to the company to do so by way of an ordinary resolution. For so long as a general authority is in force, no additional shareholder authority for a particular “on-market” purchase is required. Such authority can be given for a maximum period of five years before it requires to be renewed, and must specify: (i) the maximum number of shares that may be purchased; and (ii) the maximum and minimum prices that may be paid for the shares by specifying particular sums or providing a formula.
For an “off-market” purchase, the proposed purchase contract must be authorized by special resolution of the shareholders before the contract is entered into.
Separately, STERIS plc can redeem (as opposed to purchase) its redeemable shares once permitted to do so by the STERIS Constitution (without the requirement for additional shareholder authority).
The STERIS Constitution provides that, unless our Board determines otherwise, any ordinary share that STERIS plc has agreed to acquire shall be automatically converted into a redeemable share. Accordingly, for purposes of the Irish Companies Act, unless our Board determines otherwise, the purchase of ordinary shares by STERIS plc will technically be effected as a redemption of those shares. If the STERIS Constitution did not contain such provision, purchases of ordinary shares by STERIS plc would require to be effected as “on-market” or “off-market” purchases, as described above.
Repurchased and redeemed shares may be cancelled or held as treasury shares, provided that the par value of treasury shares held by STERIS plc at any time must not exceed 10% of STERIS plc’s company capital (consisting of the aggregate of all amounts of par value plus premium paid for STERIS plc shares, plus certain other sums that may be credited as such).
Purchases by Subsidiaries
Under Irish law, a subsidiary of STERIS plc may purchase the shares of STERIS plc either “on-market” or “off-market,” provided such purchases are authorized by the shareholders of STERIS plc as outlined above. The redemption option is not available to a subsidiary of STERIS plc.
The number of ordinary shares held by STERIS plc’s subsidiaries at any time will count as treasury shares and will be included in any calculation of the permitted treasury share threshold of 10% of the par value of the issued share capital. While a subsidiary holds any of our shares, it cannot exercise voting rights in respect of those shares. The acquisition of our ordinary shares by a subsidiary must be funded out of distributable profits of the subsidiary.
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STERIS plc cannot exercise any rights in respect of any treasury shares. Treasury shares can either be held in treasury, re-issued “on-market” or “off-market” or cancelled. Depending on the circumstances of their acquisition, treasury shares may be held indefinitely or require to be cancelled after one or three years. The re-issue of treasury shares requires to be made pursuant to a valid and subsisting shareholder authority given by way of a special resolution.
Consolidation and Division; Subdivision
Under the Irish Companies Act, STERIS plc may, by ordinary resolution, consolidate and divide all or any of its share capital into shares of larger par value than its existing shares, or subdivide its shares into smaller amounts.
Reduction of Share Capital
STERIS plc may reduce its share capital by way of a court approved procedure that also requires approval by special resolution of STERIS plc’s shareholders at a general meeting.
Lien on Shares, Calls on Shares and Forfeiture of Shares
The STERIS Constitution provides that STERIS plc will have a first and paramount lien on every share that is not a fully paid up share for an amount equal to the unpaid portion of such share. Subject to the terms of their allotment, directors may call for any unpaid amounts in respect of any shares to be paid, and if payment is not made, the shares may be forfeited. STERIS plc will not have a lien on any fully paid shares. These provisions are customary in the constitution of an Irish public company limited by shares.
General Meetings of Shareholders
STERIS plc must hold its annual general meeting within the nine month period beginning with the day following its accounting reference date (which is its accounting year end of March 31).
In addition to any SEC mandated resolutions, the business of STERIS plc’s annual general meeting is required to include: (i) the consideration of STERIS plc’s statutory financial statements, (ii) the review by the shareholders of STERIS plc’s affairs, (iii) the election and reelection of directors in accordance with the STERIS Constitution, (iv) the appointment or reappointment of the Irish statutory auditors, (v) the authorization of the directors to approve the remuneration of the statutory auditors and (vi) the declaration of dividends (other than interim dividends).
The STERIS Constitution provides that our Board may convene general meetings of the shareholders at any place they so designate. All general meetings, other than annual general meetings, are referred to as “extraordinary general meetings” at law. If a general meeting is held outside Ireland, STERIS plc has a duty, at its expense, to make all necessary arrangements to ensure that shareholders can by technological means participate in any such meeting without leaving Ireland.
The STERIS Constitution requires that notice of an annual general meeting of shareholders must be delivered to the shareholders at least 21 clear days and no more than 60 clear days before the meeting. Shareholders must be notified of all general meetings (other than annual general meetings) at least 14 clear days and no more than 60 clear days prior to the meeting (provided that, in the case of an extraordinary general meeting for the passing of a special resolution, at least 21 clear days’ notice is required in accordance with the Irish Companies Act). Notice periods for general meetings can be shortened if all shareholders entitled to attend and vote at the meeting agree to hold the meeting at short notice. “Clear days” means calendar days and excludes: (i) the date on which a notice is given or a request received and (ii) the date of the meeting itself.
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Calling Special Meetings of Shareholders
The STERIS Constitution provides that general meetings of shareholders may be called on the order of our Board. Under Irish law, one or more shareholders representing at least 10% of the paid up share capital of STERIS plc carrying voting rights have the right to requisition the holding of an extraordinary general meeting.
Serious Loss of Capital
If the directors of STERIS plc become aware that the assets of STERIS plc are half or less of the amount of STERIS plc’s called up share capital, the directors must convene an extraordinary general meeting of STERIS plc not later than 28 days after the earliest day on which that fact is known to a director (and the general meeting must be convened for a date not later than 56 days from that day). The meeting must be convened for the purpose of considering whether any, and if so what, measures should be taken to address the situation.
Quorum for Meetings of Shareholders
Under the STERIS Constitution, holders of at least a simple majority of the shares issued and entitled to vote at a general meeting, shall constitute a quorum. The necessary quorum at a separate general meeting of the holders of any class of shares shall be holders of at least a simple majority of that class of shares issued and entitled to vote.
Voting Rights
Under the STERIS Constitution, each holder of the ordinary shares is entitled to one vote for each ordinary share that he or she holds as of the record date for the meeting. The holder of the deferred ordinary shares is not entitled to a vote. No voting rights shall be exercised in respect of any shares held as treasury shares. Any shares held by the subsidiaries will count as treasury shares for this purpose, and such subsidiaries cannot therefore exercise any voting rights in respect of those shares.
All resolutions at an annual general meeting or other general meeting will be decided on a poll. On a poll every shareholder who is present, in person or by proxy, at the general meeting, is entitled to one vote for every ordinary share held by such shareholder. On a separate general meeting of the holders of any class of shares, all votes will be taken on a poll and each holder of shares of the class will, on a poll, have one vote in respect of every share of that class held by such shareholder.
Under the Irish Companies Act and the STERIS Constitution, certain matters require “ordinary resolutions,” which must be approved by at least a majority of the votes cast, in person or by proxy, by shareholders at a general meeting, and certain other matters require “special resolutions,” which require the affirmative vote of at least 75% of the votes cast, in person or by proxy, by shareholders at a general meeting. An ordinary resolution is needed (among other matters) to: remove a director; provide, vary or renew the directors’ authority to allot shares and to appoint directors (where appointment is by shareholders). A special resolution is needed (among other matters) to: alter a company’s constitution, exclude statutory preemptive rights on allotment of securities for cash (up to five years); reduce a company’s share capital; re-register a public company as a private company (or vice versa); and approve a scheme of arrangement.
The chairman at a general meeting has a casting vote if equal votes are cast for and against a resolution on a poll.
Cumulative voting is not recognized under Irish law.
Shareholder Action by Written Consent
Under Irish law, a public limited company’s shareholders can pass a resolution by written consent.
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Variation of Rights Attaching to a Class of Shares
Under the STERIS Constitution and the Irish Companies Act, any variation of class rights attaching to our issued shares must be approved by a special resolution of our shareholders of the affected class or with the consent in writing of the holders of 75% of all the votes of that class of shares.
Acquisitions
Shareholder Approval of Merger or Consolidation
Irish law recognizes the concept of a statutory merger in three situations: (i) a domestic merger where an Irish private limited company merges with another Irish company (not being a public limited company) under Part 9 of the Irish Companies Act; (ii) a domestic merger where an Irish public limited company merges with another Irish company under Part 17 of the Irish Companies Act and (iii) a cross border merger, where an Irish company merges with another company based in the European Economic Area under the European Communities (Cross Border Merger) Regulations 2008 of Ireland.
Under Irish law and subject to applicable U.S. securities laws and NYSE rules and regulations, where STERIS plc proposes to acquire another company, approval of STERIS plc’s shareholders is not required under Irish law, unless effected as a direct domestic merger or direct cross-border merger as referred to above or unless it involves the issuance of new shares or other securities carrying voting rights, which: (i) would otherwise trigger the mandatory bid requirements under the Irish Takeover Panel Act 1997, Takeover Rules 2013 (the “Irish Takeover Rules”) as described below or (ii) would constitute a “reverse takeover” under the Irish Takeover Rules. A “reverse takeover” means a transaction whereby STERIS plc acquires securities of another company or a business or assets of any kind and pursuant to which it is, or may be, obliged to increase by more than 100% its then existing issued share capital carrying voting rights.
Under Irish law, where another company proposes to acquire STERIS plc, the requirement for the approval of the shareholders of STERIS plc depends on the method of acquisition.
Statutory Scheme of Arrangement
Under Irish law, a statutory scheme of arrangement is a procedure whereby the target company makes a proposal (i.e., the scheme) to its shareholders to: (i) transfer their shares to the bidder or (ii) cancel their shares, in each case in exchange for the relevant consideration to be provided by the bidder, with the result that the bidder will become the 100% owner of the target. A scheme requires the approval of a majority in number of the registered shareholders of each class of the target’s shares affected, representing 75% of the shares of each class, present in person or by proxy at a meeting of shareholders, together with the sanction of the High Court of Ireland (the “High Court”).
Once approved by the requisite shareholder majority, sanctioned by the High Court and becoming effective, all shareholders are bound by the terms of the scheme. Dissenting shareholders have the right to appear at the High Court hearing and make representations in objection to the scheme.
Takeover Offer
Under a takeover offer, a bidder will make a general offer to the target shareholders to acquire their shares. The offer must be conditional on the bidder acquiring, or contracting to acquire (whether pursuant to the offer or otherwise), shares conferring more than 50% of the voting rights of the target, albeit the percentage will typically be set higher to enable the bidder to trigger statutory squeeze-out rights and require any non-accepting shareholders to sell and transfer their shares on the terms of the offer.
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In the case of a takeover offer for STERIS plc, where a bidder has acquired or contracted to acquire not less than 80% of the shares to which the offer relates, the bidder may, under the Irish Companies Act, require any non-accepting shareholders to sell and transfer their shares on the terms of the offer. In such circumstances, a non-accepting shareholder has the right to apply to the High Court for an order permitting him, or her, to retain his, or her, shares or to vary the terms of the offer as they pertain to him or her (including a variation such as to require payment of a cash consideration).
Statutory Mergers
It is also possible for STERIS plc to be acquired by way of a domestic or cross-border statutory merger, as described above. Such mergers must be approved by a special resolution of shareholders and sanctioned by the High Court. If the consideration being paid to shareholders is not all in the form of cash, dissenting shareholders may be entitled to require that their shares be acquired for cash.
Asset Sales/Business Combinations
The STERIS Constitution provides that an ordinary resolution of the shareholders of STERIS plc is required for certain transactions relating to the sale of all or substantially all of the property or assets of STERIS plc other than to members of STERIS’s group of companies.
Disclosure of Interests in Shares
Under the Irish Companies Act, there is a notification requirement for persons who acquire or cease to be interested in 3% of the voting share capital of an Irish public limited company, or any class thereof. “Interested” is broadly defined and includes direct and indirect holdings, beneficial interests and, in some cases, derivative interests. Furthermore, a person’s interests are aggregated with the interests of certain related persons and entities (including controlled companies). A person must notify STERIS plc if, as a result of a transaction, that person will be interested in 3% or more of STERIS plc’s ordinary shares or if, as a result of a transaction, a person who was interested in more than 3% of STERIS plc’s ordinary shares ceases to be so interested. Where a person is interested in more than 3% of STERIS plc’s ordinary shares, any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction, must be notified to STERIS plc.
The relevant percentage figure is calculated by reference to the aggregate par value of STERIS plc’s ordinary shares in which the person is interested as a proportion of the entire par value of STERIS plc’s ordinary share capital. Where the percentage level of the person’s interest does not amount to a whole percentage, this figure may be rounded down to the previous whole number. All such disclosures should be notified to STERIS plc within five business days of the transaction or the alteration that gives rise to the notification requirement.
Where a person fails to comply with the notification requirements described above, no right or interest of any kind whatsoever in respect of any of STERIS plc’s ordinary shares held by such person shall be enforceable by such person, whether directly or indirectly, by action or legal proceeding. However, such person so affected may apply to the High Court for relief.
In addition to the above disclosure requirement, under the Irish Companies Act, STERIS plc may, by notice in writing, require a person whom it knows or has reasonable cause to believe to be (or at any time during the three years immediately preceding the date on which such notice is issued to have been) interested in shares comprised in STERIS plc’s share capital: (i) to indicate whether or not it is the case and (ii) where such person holds, or has during that time held, an interest in STERIS plc’s shares, to give such further information as STERIS plc may require, including particulars of such person’s own past or present interests in the shares. Any information given in response to the notice is required to be given in writing within such reasonable time as STERIS plc may specify in the notice.
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Where such a notice is served by STERIS plc on a person who is or was interested in STERIS plc’s shares and that person fails to give STERIS plc any of the requested information within the reasonable time specified, STERIS plc may apply to the High Court for an order directing that the affected shares be made subject to certain restrictions. Under the Irish Companies Act, the restrictions that may be placed on the shares by the High Court are as follows:
| • | any transfer of those shares, or, in the case of unissued shares, any transfer of the right to be issued with shares and any issue of shares, shall be void; |
| • | no voting rights shall be exercisable in respect of those shares; |
| • | no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and |
| • | no payment shall be made of any sums due from STERIS plc on those shares, whether in respect of capital or otherwise. |
Where the shares are subject to these restrictions, the High Court may order the shares to be sold and may also direct that the shares shall cease to be subject to these restrictions
Irish Takeover Rules
STERIS plc is subject to the Irish Takeover Rules, which regulate the conduct of takeovers of, and certain other relevant transactions affecting, Irish public limited companies listed on certain stock exchanges, including the NYSE. The Irish Takeover Rules are administered by the Irish Takeover Panel, which has supervisory jurisdiction over such transactions. Among other matters, the Irish Takeover Rules operate to ensure that no offer is frustrated or unfairly prejudiced and, in the case of multiple bidders, that there is a level playing field. For example, pursuant to the Irish Takeover Rules, our Board will not be permitted, without shareholder approval, to take certain actions that might frustrate an offer for STERIS plc once our Board has received an approach that may lead to an offer or has reason to believe an offer is, or may be, imminent.
A transaction in which a third party seeks to acquire 30% or more of our voting rights and any other acquisitions of our securities will be governed by the Irish Takeover Rules and will be regulated by the Irish Takeover Panel. The “General Principles” of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.
General Principles
The Irish Takeover Rules are built on the following General Principles which will apply to any transaction regulated by the Irish Takeover Panel: (i) in the event of an offer, all holders of securities of the target company must be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; (ii) the holders of securities in the target company must have sufficient time and information to enable them to reach a properly informed decision on the offer; where it advises the holders of securities, the board of directors of the target company must give its views on the effects of the implementation of the offer on employment, employment conditions and the locations of the target company’s place of business; (iii) a target company’s board of directors must act in the interests of that company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the offer; (iv) false markets must not be created in the securities of the target company, the bidder or any other company concerned by the offer in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted; (v) a bidder can only announce an offer after ensuring that he or she can fulfill in full the consideration offered, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration; (vi) a target company may not be hindered in the conduct of its affairs longer than is reasonable by an offer for its securities and (vii) a “substantial acquisition” of securities, whether such acquisition is to be effected by one transaction or a series of transactions, shall take place only at an acceptable speed and shall be subject to adequate and timely disclosure.
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Mandatory Bid
Under certain circumstances, a person who acquires shares, or other voting securities, of a company may be required under the Irish Takeover Rules to make a mandatory cash offer for the remaining outstanding voting securities in that company at a price not less than the highest price paid for the securities by the acquiror, or any parties acting in concert with the acquiror, during the previous 12 months. This mandatory bid requirement is triggered if an acquisition of securities would increase the aggregate holding of an acquiror, including the holdings of any parties acting in concert with the acquiror, to securities representing 30% or more of the voting rights in a company, unless the Irish Takeover Panel otherwise consents. An acquisition of securities by a person holding, together with its concert parties, securities representing between 30% and 50% of the voting rights in a company would also trigger the mandatory bid requirement if, after giving effect to the acquisition, the percentage of the voting rights held by that person, together with its concert parties, would increase by 0.05% within a 12-month period. Any person, excluding any parties acting in concert with the holder, holding securities representing more than 50% of the voting rights of a company is not subject to these mandatory offer requirements in purchasing additional securities.
Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements
If a person makes a voluntary offer to acquire our outstanding ordinary shares, the offer price must not be less than the highest price paid for our ordinary shares by the bidder or its concert parties during the three-month period prior to the commencement of the offer period. The Irish Takeover Panel has the power to extend the “look back” period to 12 months if the Irish Takeover Panel, taking into account the General Principles, believes it is appropriate to do so.
If the bidder or any of its concert parties has acquired our ordinary shares: (i) during the 12-month period prior to the commencement of the offer period that represent more than 10% of our total ordinary shares or (ii) at any time after the commencement of the offer period, the offer must be in cash or accompanied by a full cash alternative and the price per ordinary share must not be less than the highest price paid by the bidder or its concert parties during, in the case of (i), the 12-month period prior to the commencement of the offer period or, in the case of (ii), the offer period. The Irish Takeover Panel may apply this Rule to a bidder who, together with its concert parties, has acquired less than 10% of our total ordinary shares in the 12-month period prior to the commencement of the offer period if the Irish Takeover Panel, taking into account the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares and other voting securities which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of the company. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of the company is prohibited, if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of the company and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.
Rights of Dissenting Shareholders
Irish law provides for dissenters’ rights in the following situations:
(i) Statutory Scheme of Arrangement
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In the case of a takeover of STERIS by scheme of arrangement under the Irish Companies Act which has been approved by the requisite majority of shareholders, dissenting shareholders have the right to appear at the High Court hearing and make representations in objection to the scheme.
(ii) Takeover Offer
In the case of a takeover offer for STERIS plc, where a bidder has acquired or contracted to acquire not less than 80% of the shares to which the offer relates, the bidder may, under the Irish Companies Act, require any non-accepting shareholders to sell and transfer their shares on the terms of the offer. In such circumstances, a non-accepting shareholder has the right to apply to the High Court for an order permitting him, or her, to retain his, or her, shares or to vary the terms of the offer as they pertain to him or her (including a variation such as to require payment of a cash consideration).
(iii) Statutory Mergers
In the case of a domestic or cross-border statutory merger, as described above, which has been approved by the requisite majority of shareholders, if the consideration being paid to shareholders is not all in the form of cash, dissenting shareholders may be entitled to require that their shares be acquired for cash.
Anti-Takeover Measures
Frustrating Action
Under the Irish Takeover Rules, our Board is not permitted to take any action that might frustrate an offer for our shares once our Board has received an approach that may lead to an offer or has reason to believe that such an offer is or may be imminent, subject to certain exceptions. Potentially actions such as: (i) the issue of shares, options, restricted share units or convertible securities, (ii) material acquisitions or disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any earlier time during which our Board has reason to believe an offer is or may be imminent. Exceptions to this prohibition are available where: (i) the action is approved by our shareholders at a general meeting or (ii) the Irish Takeover Panel has given its consent, where: (a) it is satisfied the action would not constitute frustrating action; (b) our shareholders holding more than 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; (c) the action is taken in accordance with a contract entered into prior to the announcement of the offer, or any earlier time at which our Board considered the offer to be imminent or (d) the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business.
Insider Dealing
The Irish Takeover Rules also provide that no person, other than the bidder, who is privy to confidential price-sensitive information concerning an offer made in respect of the acquisition of a company (or a class of securities) or a contemplated offer shall deal in relevant securities of the target during the period from the time at which such person first has reason to suppose that such an offer, or an approach with a view to such an offer being made, is contemplated to the time of (i) the announcement of such offer or approach or (ii) the termination of discussions relating to such offer, whichever is earlier.
Duration; Dissolution; Rights upon Liquidation
The duration of STERIS plc is unlimited. STERIS plc may be dissolved and wound up at any time by way of a shareholders’ voluntary winding up or a creditors’ winding up. In the case of a shareholders’ voluntary winding up, a special resolution of shareholders is required. STERIS plc may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure if it has failed to file certain returns. STERIS plc may also be dissolved by the Director of Corporate Enforcement in Ireland where our affairs have been investigated by an inspector and it appears from the report or any information obtained by the Director of Corporate Enforcement that STERIS plc should be wound up.
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If the STERIS Constitution contains no specific provisions in respect of a dissolution or winding up, then, subject to the priorities of any creditors, the assets will be distributed to our shareholders in proportion to the paid-up par value of the shares held. The STERIS Constitution contains no specific provisions in respect of a winding up, but the rights of the shareholders may be subject to the rights of any preference shareholders to participate under the terms of any series or class of preferred shares.
Uncertificated Shares
Shares of STERIS plc may be held in either certificated or uncertificated form.
No Sinking Fund
The ordinary shares have no sinking fund provisions.
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General
We may issue warrants for the purchase of ordinary shares, preferred shares or debt securities. The following description sets for certain general terms and provisions of the warrants that we may offer pursuant to this prospectus. The particular terms of the warrants and the extent, if any, to which the general terms and provisions may apply to the warrants so offered will be described in the applicable prospectus supplement. When we refer to “we,” “us,” or “our” in this section, we mean STERIS plc, excluding, unless the context otherwise requires or as otherwise expressly stated, its subsidiaries.
Warrants may be issued independently or together with other securities and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as a warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
A copy of the forms of the warrant agreement and the warrant certificate relating to any particular issue of warrants will be filed with the SEC each time we issue warrants, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the warrant agreement and the related warrant certificate, if and when they are filed, see “Where You Can Find More Information.”
Debt Warrants
The prospectus supplement relating to a particular issue of warrants to issue debt securities will describe the terms of those warrants, including the following:
| • | the title of the warrants; |
| • | the offering price for the warrants, if any; |
| • | the aggregate number of the warrants; |
| • | the designation and terms of the debt securities purchasable upon exercise of the warrants; |
| • | if applicable, the designation and terms of the debt securities that the warrants are issued with and the number of warrants issued with each debt security; |
| • | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
| • | the principal amount of debt securities that may be purchased upon exercise of a warrant and the price at which the debt securities may be purchased upon exercise; |
| • | the dates on which the right to exercise the warrants will commence and expire; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | whether the warrants represented by the warrant certificates or debt securities that may be issued upon exercise of the warrants will be issued in registered or bearer form; |
| • | information relating to book-entry procedures, if any; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| • | if applicable, a discussion of material United States federal income tax considerations; |
| • | anti-dilution provisions of the warrants, if any; |
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| • | redemption or call provisions, if any, applicable to the warrants; |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and |
| • | any other information we think is important about the warrants. |
Stock Warrants
The prospectus supplement relating to a particular issue of warrants to issue ordinary shares or preferred shares will describe the terms of the ordinary shares warrants or preferred shares warrants, including the following:
| • | the title of the warrants; |
| • | the offering price for the warrants, if any; |
| • | the aggregate number of the warrants; |
| • | the designation and terms of the ordinary shares or preferred shares that may be purchased upon exercise of the warrants; |
| • | if applicable, the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security; |
| • | if applicable, the date from and after which the warrants and any securities issued with them will be separately transferable; |
| • | the number of ordinary shares or preferred shares that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise; |
| • | the dates on which the right to exercise the warrants commence and expire; |
| • | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
| • | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| • | if applicable, a discussion of material United States federal income tax considerations; |
| • | anti-dilution provisions of the warrants, if any; |
| • | redemption or call provisions, if any, applicable to the warrants; |
| • | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and |
| • | any other information we think is important about the warrants. |
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement the number of ordinary shares, preferred shares or the principal amount of debt securities being offered. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants are void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered.
Until a holder exercises the warrants to purchase ordinary shares, preferred shares or debt securities, the holder will not have any rights as a holder of ordinary shares, preferred shares or debt securities, as the case may be, by virtue of ownership of warrants.
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We may issue units comprising two or more securities described in this prospectus in any combination. The following description sets forth certain general terms and provisions of the units that we may offer pursuant to this prospectus. The particular terms of the units and the extent, if any, to which the general terms and provisions may apply to the units so offered will be described in the applicable prospectus supplement.
Each unit will be issued so that the holder of the unit also is the holder of each security included in the unit. Thus, the unit will have the rights and obligations of a holder of each included security. Units will be issued pursuant to the terms of a unit agreement which may provide that the securities included in the unit may not be held or transferred separately at any time or at any time before a specified date. Copies of the forms of the unit agreement and the unit certificate relating to any particular issue of units will be filed with the SEC each time we issue units, and you should read those documents for provisions that may be important to you. For more information on how you can obtain copies of the forms of the unit agreement and the related unit certificate, if and when they are filed, see “Where You Can Find More Information.”
The prospectus supplement relating to any particular issuance of units will describe the terms of those units, including, to the extent applicable, the following:
| • | the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
| • | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
| • | whether the units will be issued in fully registered or global form. |
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UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL DATA
The following unaudited pro forma financial data (“pro forma financial data”) combines the historical consolidated financial positions and results of operations of STERIS plc and Cantel as an acquisition by STERIS plc of Cantel. The proposed transaction was announced on January 12, 2021 and provides that, after the completion of the proposed transaction, each share of common stock, par value $0.10 per share, of Cantel (“Cantel Common Stock”), issued and outstanding immediately prior to the effective time of the Pre-Closing Merger (as defined in the Merger Agreement) (other than certain shares held by Cantel) will be ultimately converted into the right to receive $16.93 in cash and 0.33787 ordinary shares (the “Merger Consideration”).
The pro forma financial data has been prepared to give effect to the following:
| • | The acquisition of Cantel by STERIS plc in the proposed transaction under the provisions of the Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 805, Business Combinations, where the assets and liabilities of Cantel will be recorded by STERIS plc at their respective fair values as of the date the proposed transaction is completed; |
| • | The pro forma impact of the acquisition of Hu-Friedy Mfg. Co. LLC (“Hu-Friedy”) by Cantel on October 1, 2019 under the provisions of FASB ASC 805; |
| • | The distribution of cash and ordinary shares to holders of Cantel Common Stock (“Cantel Stockholders”) (holders of common stock of Canyon HoldCo, Inc. (“Canyon Newco Common Stock”) immediately after the Pre-Closing Merger) in exchange for Cantel Common Stock (Canyon Newco Common Stock immediately after the Pre-Closing Merger) (based upon a 0.33787 exchange ratio); |
| • | Certain reclassifications to conform the historical financial statement presentation of Cantel to STERIS plc and elimination of existing trade activity between STERIS plc and Cantel; |
| • | Certain other material related transactions, including financing; and |
| • | Transaction costs in connection with the proposed transaction. |
The unaudited pro forma balance sheet data (“pro forma balance sheet data”) as of December 31, 2020 and the unaudited pro forma statements of income data (“pro forma statements of income data”) for the nine months ended December 31, 2020, and the fiscal year ended March 31, 2020 are based upon, derived from and should be read in conjunction with the historical consolidated financial statements and related notes of STERIS plc for the fiscal year ended March 31, 2020 (which are available in STERIS plc’s Annual Report on Form 10-K for the fiscal year ended March 31, 2020, as supplemented in Current Report on Form 8-K filed with the SEC on February 9, 2021, each incorporated by reference into this prospectus), the historical unaudited financial statements of STERIS plc for the nine-month period ended December 31, 2020 (which are available in STERIS plc’s Quarterly Report on Form 10-Q for the quarterly period ended December 31, 2020 and incorporated by reference into this prospectus). The pro forma balance sheet data and pro forma statements of income data have been prepared utilizing period ends that differ by fewer than 93 days, as permitted by Regulation S-X. Because Cantel’s fiscal year end is July 31 and STERIS plc’s fiscal year end is March 31, the pro forma statements of income data for the nine-month period ended December 31, 2020 and the fiscal year ended March 31, 2020 utilize Cantel’s results of operations for the nine months ended October 31, 2020 and the twelve months ended January 31, 2020. The pro forma statement of income data also utilizes the consolidated statement of income of Hu-Friedy for the eight months ended September 30, 2019 due to Cantel’s acquisition of Hu-Friedy on October 1, 2019, for which activity prior to October 1, 2019 is not included in the historical results of Cantel. The consolidated statement of income of Cantel for the four quarterly periods ended January 31, 2020 were determined by adding Cantel’s unaudited consolidated statement of income for the six months ended January 31, 2020 to Cantel’s audited consolidated statement of income for the fiscal year ended July 31, 2019, and subtracting Cantel’s unaudited consolidated statement of income for the six months ended January 31, 2019. The consolidated statement of income of Hu-Friedy was determined by subtracting Hu-Friedy’s unaudited consolidated statement of income for the month ended January 31, 2019 from the unaudited consolidated
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statement of income for the nine months ended September 30, 2019. The unaudited pro forma statement of income data for the nine months ended December 31, 2020 combines the unaudited consolidated statement of income of STERIS plc for the nine months ended December 31, 2020 with the consolidated statements of income of Cantel for the three quarterly periods ended October 31, 2020. The consolidated statements of income of Cantel for the three quarterly periods ended October 31, 2020 were determined by adding Cantel’s unaudited consolidated statement of income for the three months ended October 31, 2020 to Cantel’s audited consolidated statement of income for the fiscal year ended July 31, 2020, and subtracting Cantel’s unaudited consolidated statement of income for the six months ended January 31, 2020. The pro forma balance sheet data utilizes Cantel’s unaudited balance sheet as of October 31, 2020. These values are based upon, derived from and should be read in conjunction with the historical audited financial statements of Cantel for the fiscal year ended July 31, 2020 (which are available in Cantel’s Annual Report on Form 10-K for the fiscal year ended July 31, 2020 and incorporated by reference into this prospectus), the historical unaudited financial statements of Cantel for the periods ended January 31, 2020, April 30, 2020 and October 31, 2020 (which are available in Cantel’s Quarterly Reports on Form 10-Q for the quarterly periods ended January 31, 2020, April 30, 2020 and October 31, 2020, respectively, each incorporated by reference into this prospectus).
The pro forma statements of income data for the nine months ended December 31, 2020 and the year ended March 31, 2020 give effect to the STERIS plc acquisition of Cantel as if it had occurred on April 1, 2019. The pro forma balance sheet data as of December 31, 2020 gives effect to the STERIS plc acquisition of Cantel as if it had occurred on December 31, 2020.
The pro forma financial data is provided for illustrative information purposes only and are not necessarily indicative of results that actually would have occurred or that may occur in the future had the proposed transaction been completed on the dates indicated, or the future operating results or financial position of STERIS plc following the proposed transaction. Future results may vary significantly from the results reflected because of various factors, including those discussed in the section entitled “Risk Factors” beginning on page 11. The pro forma financial data has been prepared by STERIS plc in accordance with Regulation S-X Article 11, Pro Forma Financial Information, as amended by the final rule, Amendments to Financial Disclosures About Acquired and Disposed Businesses, as adopted by the SEC on May 21, 2020.
The pro forma financial data also does not consider any potential effects of changes in market conditions on revenues, expense efficiencies, asset dispositions, and share repurchases, among other factors. STERIS plc expects to realize annualized pre-tax cost synergies of approximately $110 million by the fourth fiscal year following the close, with approximately 50% achieved in the first two years. Cost synergies are expected to be primarily driven by cost reductions in redundant public company and back-office overhead, commercial integration, product manufacturing, and service operations. The $110 million of pre-tax cost synergies has not been adjusted in the pro forma financial data. In addition, as explained in more detail in the accompanying notes, the preliminary allocation of the pro forma purchase price reflected in the pro forma financial data is subject to adjustment and may vary significantly from the actual purchase price allocation that will be recorded upon completion of the proposed transaction.
As of the date of this prospectus, STERIS plc has not completed the valuation analysis and calculations in sufficient detail necessary to arrive at the required estimates of the fair market value of Cantel’s assets to be acquired or liabilities to be assumed, other than preliminary estimates for intangible assets, inventory and certain financial liabilities. Nor does STERIS plc have sufficient detail necessary to conclude that the carrying value of certain assets and liabilities approximates fair value. Accordingly, certain Cantel assets and liabilities are presented at their respective carrying amounts and should be treated as preliminary values. A final determination of the fair value of Cantel’s assets and liabilities will be based on Cantel’s actual assets and liabilities as of the Closing (as defined in the Merger Agreement) and, therefore, cannot be made prior to the completion of the proposed transaction. In addition, the value of the purchase consideration to be paid by STERIS plc in the ordinary shares upon the completion of the proposed transaction will be determined based on the low price of ordinary shares on the date of the Closing and the number of issued and outstanding shares of Cantel Common
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Stock (Canyon Newco Common Stock immediately after the Pre-Closing Merger) immediately prior to the Closing. Actual adjustments may differ from the amounts reflected in the pro forma financial data, and the differences may be material.
Based on its due diligence, STERIS plc did not identify any material adjustments necessary to conform Cantel’s accounting policies to that of STERIS plc. However, upon completion of the proposed transaction, or as more information becomes available, STERIS plc will perform a more detailed review of Cantel’s accounting policies. As a result of that review, differences could be identified between the accounting policies of the two companies that, when conformed, could have a material impact on the combined financial information.
As a result of the foregoing, the transaction accounting adjustments are preliminary and are subject to change as additional information becomes available and as additional analysis is performed. The transaction accounting adjustments have been made solely for the purpose of providing the pro forma financial data. STERIS plc estimated the fair value of certain Cantel assets and liabilities based on a preliminary valuation analysis, due diligence information, information presented in Cantel’s SEC filings and other publicly available information. Until the proposed transaction is completed, both companies are limited in their ability to share certain information.
Upon completion of the proposed transaction, a final determination of the fair value of Cantel’s assets acquired and liabilities assumed will be performed. Any changes in the fair values of the net assets or total purchase consideration as compared with the information shown in the pro forma financial data may change the amount of the total purchase consideration allocated to goodwill and other assets and liabilities and may impact STERIS plc’s statement of income after effectuating the proposed transaction. The final purchase consideration allocation may be materially different than the preliminary purchase consideration allocation presented in the pro forma financial data.
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Unaudited Pro Forma Condensed Combined Balance Sheet
as of December 31, 2020
(in thousands)
| Historical STERIS plc (as reported) |
Historical Cantel (as reported October 31, 2020) |
Transaction adjustments Note 3 |
Note | Other Transaction adjustments Note 5 |
Note | STERIS plc combined pro forma |
||||||||||||||||||
| Assets |
||||||||||||||||||||||||
| Current assets |
||||||||||||||||||||||||
| Cash |
$ | 252,502 | $ | 258,021 | (745,943 | ) | J | 888,071 | A | $ | 652,651 | |||||||||||||
| Accounts receivable, net |
556,117 | 158,763 | — | — | 714,880 | |||||||||||||||||||
| Inventory |
294,132 | 163,880 | 62,000 | C | — | 520,012 | ||||||||||||||||||
| Income taxes receivable |
— | 27,036 | — | — | 27,036 | |||||||||||||||||||
| Prepaid expenses and other current assets |
73,324 | 19,429 | — | — | 92,753 | |||||||||||||||||||
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|
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|
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|
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| Total current assets |
1,176,075 | 627,129 | (683,943 | ) | 888,071 | 2,007,332 | ||||||||||||||||||
| Property, plant and equipment, net |
1,226,895 | 223,510 | — | D | — | 1,450,405 | ||||||||||||||||||
| Lease right of use assets, net |
149,741 | 47,901 | — | E | — | 197,642 | ||||||||||||||||||
| Goodwill |
2,926,551 | 660,421 | 1,802,600 | H | — | 5,389,572 | ||||||||||||||||||
| Intangible assets, net |
1,043,904 | 471,337 | 1,718,663 | B | — | 3,233,904 | ||||||||||||||||||
| Other assets |
57,614 | 6,467 | — | — | 64,081 | |||||||||||||||||||
| Deferred income taxes |
3,738 | — | (5,030 | ) | A | (1,292 | ) | |||||||||||||||||
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| Total assets |
$ | 6,580,780 | $ | 2,040,503 | $ | 2,837,320 | $ | 883,041 | $ | 12,341,644 | ||||||||||||||
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| Liabilities and shareholders’ equity |
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| Current liabilities |
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| Current portion of long- term debt |
$ | — | $ | 14,750 | $ | — | $ | (14,750 | ) | A | $ | — | ||||||||||||
| Accounts payable |
134,471 | 46,891 | — | — | 181,362 | |||||||||||||||||||
| Accrued income taxes |
13,068 | 6,759 | (3,750 | ) | I | (7,917 | ) | A | 8,160 | |||||||||||||||
| Accrued payroll and related liabilities |
152,331 | 47,788 | — | — | 200,119 | |||||||||||||||||||
| Accrued expenses and other |
184,633 | 45,525 | — | G | — | 230,158 | ||||||||||||||||||
| Lease obligations due within one year |
21,364 | 10,044 | — | E | — | 31,408 | ||||||||||||||||||
| Other current liabilities |
— | 28,454 | — | F | (5,465 | ) | A | 22,989 | ||||||||||||||||
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| Total current liabilities |
505,867 | 200,211 | (3,750 | ) | (28,132 | ) | 674,196 | |||||||||||||||||
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| Historical STERIS plc (as reported) |
Historical Cantel (as reported October 31, 2020) |
Transaction adjustments Note 3 |
Note | Other Transaction adjustments Note 5 |
Note | STERIS plc combined pro forma |
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| Noncurrent liabilities |
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| Long-term indebtedness |
1,713,199 | 845,142 | — | F | 934,490 | A | 3,492,831 | |||||||||||||||||
| Convertible Debt |
126,617 | 41,383 | F | — | 168,000 | |||||||||||||||||||
| Long term lease obligations |
130,217 | 40,296 | — | E | — | 170,513 | ||||||||||||||||||
| Deferred income taxes |
264,041 | 49,533 | 517,813 | G | — | 831,387 | ||||||||||||||||||
| Other noncurrent liabilities |
89,264 | 20,323 | — | F | (14,654 | ) | A | 94,933 | ||||||||||||||||
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| Total liabilities |
2,702,588 | 1,282,122 | 555,446 | 891,704 | 5,431,860 | |||||||||||||||||||
| Shareholders’ equity |
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| Ordinary shares at par |
$ | 85 | $ | 4,693 | $ | (4,679 | ) | I | $ | — | $ | 99 | ||||||||||||
| Capital in excess of par value |
1,996,758 | 276,450 | 2,790,041 | I | — | 5,063,249 | ||||||||||||||||||
| Treasury shares |
— | (70,311 | ) | 70,311 | I | — | — | |||||||||||||||||
| Retained earnings |
1,872,533 | 572,798 | (599,048 | ) | I | (8,663 | ) | A | 1,837,620 | |||||||||||||||
| Accumulated other comprehensive income (loss) |
(2,386 | ) | (25,249 | ) | 25,249 | I | — | (2,386 | ) | |||||||||||||||
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| Shareholders’ equity |
3,866,990 | 758,381 | 2,281,874 | (8,663 | ) | 6,898,582 | ||||||||||||||||||
| Noncontrolling interests |
11,202 | — | — | — | 11,202 | |||||||||||||||||||
| Total equity |
3,878,192 | 758,381 | 2,281,874 | (8,663 | ) | 6,909,784 | ||||||||||||||||||
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| Total liabilities and equity |
$ | 6,580,780 | $ | 2,040,503 | $ | 2,837,320 | $ | 883,041 | $ | 12,341,644 | ||||||||||||||
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See the accompanying notes to the unaudited pro forma condensed combined financial data.
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Unaudited Pro Forma Condensed Combined Statement of Income
For the Nine Months Ended December 31, 2020
(in thousands, except for per share data)
| Historical STERIS plc (as reported) |
Historical Cantel (nine months ended October 31, 2020) |
Reclassification and elimination adjustments Note 2 |
Transaction adjustments Note 4 |
Note | Other Transaction adjustments Note 5 |
Note | STERIS plc combined pro forma |
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| Net revenues |
$ | 2,233,988 | $ | 767,333 | $ | (9,215 | ) | $ | — | $ | — | $ | 2,992,106 | |||||||||||||||
| Cost of revenues |
1,272,522 | 422,107 | (9,215 | ) | 1,103 | A,C | — | 1,686,517 | ||||||||||||||||||||
| Selling, general and administrative expense |
510,250 | 244,246 | 110 | 101,372 | B,C | — | 855,978 | |||||||||||||||||||||
| Research and development expense |
48,812 | 24,341 | — | 362 | C | — | 73,515 | |||||||||||||||||||||
| Restructuring expenses |
110 | — | (110 | ) | — | — | — | |||||||||||||||||||||
| Interest expense and other, net |
22,280 | 41,679 | — | — | (7,816 | ) | A | 56,143 | ||||||||||||||||||||
| Other expense, net |
— | — | — | — | — | — | ||||||||||||||||||||||
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| Income from continuing operations before income taxes |
380,014 | 34,960 | — | (102,837 | ) | 7,816 | 319,953 | |||||||||||||||||||||
| Income tax expense |
71,294 | 292 | — | (25,710 | ) | E | 1,954 | C | 47,830 | |||||||||||||||||||
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| Net income from continuing operations |
308,720 | $ | 34,668 | — | (77,127 | ) | 5,862 | 272,123 | ||||||||||||||||||||
| Less net income for noncontrolling interests |
171 | — | — | — | — | 171 | ||||||||||||||||||||||
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| Net income from continuing operations attributable to ordinary shareholders |
$ | 308,549 | $ | 34,668 | $ | — | $ | (77,127 | ) | $ | 5,862 | $ | 271,952 | |||||||||||||||
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| Net income from continuing operations per ordinary share |
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| Basic |
$ | 3.62 | $ | 0.81 | $ | 2.73 | ||||||||||||||||||||||
| Diluted |
$ | 3.59 | $ | 0.80 | $ | 2.71 | ||||||||||||||||||||||
| Weighted—average number of ordinary shares outstanding |
||||||||||||||||||||||||||||
| Basic |
85,153 | 42,800 | 99,441 | |||||||||||||||||||||||||
| Diluted |
85,851 | 43,335 | 100,336 | |||||||||||||||||||||||||
See the accompanying notes to the unaudited pro forma condensed combined financial data.
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Unaudited Pro Forma Condensed Combined Statement of Income
For the Year Ended March 31, 2020
(in thousands except for per share data)
| Historical STERIS plc (as reported) |
Historical Cantel (twelve months ended January 31, 2020) |
Historical Hu-Friedy (eight months ended September 30, 2019) |
Reclassification and elimination adjustments Note 2 |
Transaction adjustments Note 4 |
Note | Other Transaction adjustments Note 5 |
Note | STERIS plc combined pro forma |
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| Net revenues |
$ | 3,030,895 | $ | 1,013,772 | $ | 146,189 | $ | (11,951 | ) | $ | — | $ | — | $ | 4,178,905 | |||||||||||||||||||||
| Cost of revenues |
1,710,972 | 558,129 | 55,908 | (11,951 | ) | 63,598 | A,C | — | 2,376,656 | |||||||||||||||||||||||||||
| Selling, general and administrative expense |
716,731 | 372,055 | 65,122 | 468 | 265,233 | B,C,D | 34,591 | B | 1,454,190 | |||||||||||||||||||||||||||
| Research and development expense |
65,546 | 31,923 | 1,243 | 525 | C | — | 99,237 | |||||||||||||||||||||||||||||
| Restructuring expenses |
673 | — | — | (673 | ) | — | — | — | ||||||||||||||||||||||||||||
| Interest and other expense-net |
38,292 | 21,241 | 4,434 | — | 20,840 | A | 84,807 | |||||||||||||||||||||||||||||
| Other expense-net |
— | 8 | (213 | ) | 205 | — | — | — | ||||||||||||||||||||||||||||
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| Income from continuing operations before income taxes |
498,681 | 30,416 | 19,695 | — | (329,346 | ) | (55,431 | ) | 164,015 | |||||||||||||||||||||||||||
| Income tax expense |
90,876 | 9,912 | 985 | — | (70,837 | ) | E | (5,527 | ) | C | 25,409 | |||||||||||||||||||||||||
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| Net income from continuing operations |
407,805 | 20,504 | 18,710 | — | (258,509 | ) | (49,904 | ) | 138,606 | |||||||||||||||||||||||||||
| Less net income (loss) for noncontrolling interests |
200 | — | — | — | — | — | 200 | |||||||||||||||||||||||||||||
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| Net income from continuing operations attributable to ordinary shareholders |
$ | 407,605 | $ | 20,504 | $ | 18,710 | $ | — | $ | (258,509 | ) | $ | (49,904 | ) | $ | 138,406 | ||||||||||||||||||||
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| Net income from continuing operations per ordinary share |
||||||||||||||||||||||||||||||||||||
| Basic |
$ | 4.81 | $ | 0.50 | $ | 1.40 | ||||||||||||||||||||||||||||||
| Diluted |
$ | 4.76 | $ | 0.50 | $ | 1.38 | ||||||||||||||||||||||||||||||
| Weighted-average number of ordinary shares outstanding |
||||||||||||||||||||||||||||||||||||
| Basic |
84,778 | 41,008 | 99,066 | |||||||||||||||||||||||||||||||||
| Diluted |
85,641 | 41,008 | 100,092 | |||||||||||||||||||||||||||||||||
See the accompanying notes to the unaudited pro forma condensed combined financial data.
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NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL DATA
(All figures reported in thousands except for per share data, unless indicated otherwise)
Note 1. Basis of Presentation
The accompanying pro forma financial data and related explanatory notes were prepared in accordance with Article 11 of Regulation S-X, Pro Forma Financial Information, as amended by the final rule, Amendments to Financial Disclosures About Acquired and Disposed Businesses, as adopted by the SEC on May 21, 2020. The pro forma financial data has been compiled from historical consolidated financial statements prepared in accordance with GAAP, and should be read in conjunction with STERIS plc’s Annual Report on Form 10-K for the year ended March 31, 2020, as supplemented in Current Report on Form 8-K filed with the SEC on February 9, 2021, and Quarterly Report on Form 10-Q for the nine-month period ended December 31, 2020 and Cantel’s Annual Report on Form 10-K for the year ended July 31, 2020 and the Quarterly Reports on Form 10-Q for each of the three-month periods ended January 31, 2020, April 30, 2020 and October 31, 2020, each of which are incorporated by reference into this prospectus.
The pro forma financial data has been prepared to illustrate the effects of the proposed transaction involving STERIS plc’s subsidiaries and Cantel under the acquisition method of accounting with STERIS plc treated as the acquirer. The pro forma financial data is presented for illustrative purposes only and does not necessarily indicate the financial results of STERIS plc after completion of the proposed transaction had the companies actually been combined at the beginning of each period presented, nor does it necessarily indicate the results of operations in future periods or the future financial position of STERIS plc after completion of the proposed transaction. Under the acquisition method of accounting, the assets and liabilities of Cantel, as of the effective time of the proposed transaction, will be recorded by STERIS plc at their respective fair values, and the excess of the purchase consideration over the fair value of Cantel’s net assets will be allocated to goodwill.
The proposed transaction ultimately provides for Cantel Stockholders to receive the Merger Consideration for each share of Cantel Common Stock they hold immediately prior to the Pre-Closing Merger. Based on the closing trading price of ordinary shares on the NYSE on January 11, 2021 of $200.46, the value of the Merger Consideration per share of Cantel Common Stock was $84.66.
The pro forma allocation of the purchase consideration reflected in the pro forma financial data is subject to adjustment and may vary from the actual purchase consideration allocation that will be recorded at the time the proposed transaction is completed. Adjustments may include, but are not limited to, changes in (i) Cantel’s balance sheet through the effective time of the proposed transaction; Mergers; (ii) the aggregate value of purchase consideration paid if the price of ordinary shares varies from the assumed $200.46 per share, which represents the closing share price of ordinary shares on January 11, 2021; (iii) total proposed transaction related expenses if consummation and/or implementation costs vary from currently estimated amounts; and (iv) the underlying values of assets and liabilities if market conditions differ from current assumptions.
Although no material differences were noted in the due diligence process, the accounting policies of both STERIS plc and Cantel will be reviewed in detail. Upon completion of such review, additional conforming adjustments or financial statement reclassification may be necessary.
Costs related to the proposed transaction, such as investment banker, advisory, legal, valuation and other professional fees are not included as a component of consideration transferred but are expensed as incurred. The impact of trade that existed between STERIS plc and Cantel during the pro forma periods has been adjusted in the column labeled reclassification and elimination adjustments in the pro forma statements of income data but was not material to the pro forma balance sheet data.
The pro forma financial data does not reflect potential cost savings, operating synergies or revenue enhancements that STERIS plc and Cantel may achieve as a result of the proposed transaction, the costs to
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combine the operations of STERIS plc and Cantel or the costs necessary to achieve such potential cost savings, operating synergies and revenue enhancements.
Note 2. Pro Forma Reclassification and Elimination Adjustments
Certain reclassifications and elimination adjustments have been recorded to adjust historical financial statements to conform to the pro forma financial data presentation.
Revenues reported by Cantel and cost of revenues reported by STERIS plc of $9,215 and $11,346 have been eliminated from the pro forma statements of income data based on the value of purchases made by STERIS plc from Cantel in the normal course of business during the nine months ended December 31, 2020 and the year ended March 31, 2020, respectively. Revenues reported by Hu-Friedy and cost of revenues reported by Cantel of $605 were eliminated from the pro forma statement of income data for the year ended March 31, 2020 based on the activity during the eight months ended September 30, 2019. The impact to the pro forma balance sheet data of trade payables and receivables was not material and has not been adjusted.
Note 3. Estimated Purchase Consideration, Allocation and Adjustments to the Unaudited Pro Forma Condensed Combined Balance Sheet
The estimated purchase consideration, related estimated allocations and resulting excess over fair value of net assets acquired are as follows:
| Total Cantel Common Stock and stock equivalents |
42,288 | |||
| Exchange ratio per share |
0.33787 | |||
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|
|||
| Ordinary shares to be issued to Cantel Stockholders |
14,288 | |||
| Per ordinary share closing trading price on January 11, 2021 |
$ | 200.46 | ||
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| Total value of ordinary shares to be issued to Cantel Stockholders |
$ | 2,864,170 | ||
| Total cash consideration paid at $16.93 per share of Cantel Common Stock and stock equivalent |
715,943 | |||
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|
|||
| Estimated purchase consideration for Cantel Common Stock and stock equivalents |
3,580,113 | |||
| Consideration for replacement of share based compensation awards |
13,522 | |||
| Consideration for equity component of Cantel Convertible Debt |
188,813 | |||
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| Total estimated purchase consideration |
$ | 3,782,448 | ||
| Fair value adjustments for other intangible assets |
2,190,000 | |||
| Fair value adjustments for inventory |
62,000 | |||
| Fair value adjustments for Convertible Debt assumed |
(41,383 | ) | ||
| Deferred tax impact of fair value adjustments |
(517,813 | ) | ||
| Adjusted book value of net assets acquired |
(373,377 | ) | ||
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| Goodwill |
$ | 2,463,021 | ||
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|
|
The purchase consideration allocation and adjustments shown in the table above is based on STERIS plc’s estimates of the fair value of certain Cantel assets and liabilities. Once the acquisition is completed, sufficient information is available and final valuations are performed, the purchase consideration allocation may differ materially from the estimates.
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Portions of the purchase consideration will depend on the market price of ordinary shares when the proposed transaction is completed. STERIS plc believes that a 15% fluctuation in the market price of ordinary shares is reasonably possible based on volatility before and after the announcement date. The following table summarizes the impact of a 15% increase and 15% decrease in the price per ordinary share from the January 11, 2021 baseline and resulting impact on the determination of the Merger Consideration.
| 15% increase | 15% decrease | |||||||
| Total Cantel Common Stock and stock equivalents |
42,288 | 42,288 | ||||||
| Exchange ratio per share |
0.33787 | 0.33787 | ||||||
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| Ordinary shares to be issued to Cantel Stockholders |
14,288 | 14,288 | ||||||
| Per ordinary share price |
$ | 230.53 | $ | 170.39 | ||||
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| Total value of ordinary shares to be issued to Cantel Stockholders |
$ | 3,293,796 | $ | 2,434,545 | ||||
| Total cash consideration paid at $16.93 per share of Cantel Common Stock and stock equivalent |
715,943 | 715,943 | ||||||
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| Estimated purchase consideration for Cantel Common Stock and stock equivalents |
4,009,739 | 3,150,488 | ||||||
| Consideration for replacement share based compensation awards |
15,550 | 11,494 | ||||||
| Consideration for equity component of Cantel Convertible Debt |
238,157 | 139,733 | ||||||
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| Total estimated Merger Consideration |
$ | 4,263,446 | $ | 3,301,718 | ||||
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| A. | Total estimated purchase consideration |
The total estimated purchase consideration for Cantel Common Stock and stock equivalents of $3,580,113 is comprised of ordinary shares consideration valued at $2,864,170 and cash consideration of $715,943. Based on the closing trading price of ordinary shares of $200.46 on January 11, 2021, the total consideration ultimately received by Cantel Stockholders in the First Merger (as defined in the Merger Agreement) has a value of approximately $84.66 per share of Cantel Common Stock. Additional estimated purchase consideration of $13,522 and $188,813 related to replacement share based compensation awards and the fair value of the equity component of the Convertible Debt (as defined below), respectively, results in total estimated equity consideration of $3,782,448.
Upon completion of the proposed transaction, the holder of each share of Cantel Common Stock will be entitled to receive the Merger Consideration. Restricted stock units corresponding to Cantel Common Stock (“Cantel RSU Awards”) held by non-employee directors of Cantel outstanding under Cantel’s equity-based compensation plans immediately prior to the completion of the proposed transaction will become fully vested. These Cantel RSU Awards will be cancelled, and each share of Cantel Common Stock covered by such Cantel RSU Awards will be converted into the right to receive the same Merger Consideration as other Cantel Stockholders. Total Cantel Common Stock and stock equivalents prior to the acquisition also include additional shares that are expected to be issued prior to the Closing in connection with certain obligations of Cantel under prior transaction agreements.
Other Cantel RSU Awards outstanding under Cantel’s equity-based compensation plans immediately prior to the completion of the Mergers will be converted into STERIS plc restricted stock unit awards (“STERIS RSU Awards”) under STERIS plc’s equity-based compensation plan with vesting terms and conditions consistent with the terms of the previous Cantel RSU Awards except that performance-based vesting Cantel RSU Awards will be
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converted to service-based vesting STERIS RSU Awards based on 100% of the target number of shares of Cantel Common Stock covered by such Cantel RSU Award.
| B. | Other intangible assets |
The estimated fair values of identifiable intangible assets were prepared using an income valuation approach, which requires a forecast of expected future cash flows either through the use of the relief-from-royalty method or the multi-period excess earnings method. The identified intangible assets include Customer relationships, tradenames and developed technology. The estimated useful lives are based on the historical experience of STERIS plc, available similar industry data and assumptions made by STERIS plc management. These estimated fair values were prepared solely for the purposes of preparing this pro forma financial data and are subject to change upon completion of the proposed transaction and preparation of the final valuation. Changes in fair value of the acquired intangible assets may be material.
Net adjustments of $1,718,663 were made to eliminate the historical Cantel other intangibles of $471,337 and record the estimated other intangibles assets of $2,190,000 related to the proposed transaction. The average estimated useful lives of the identifiable intangible assets is 13 years.
| C. | Inventory |
To estimate the fair value of inventory, STERIS plc considered the components of Cantel’s inventory, as well as estimates of selling prices and selling and distribution costs.
A fair value adjustment to inventory of $62,000 was made to adjust inventory to estimated fair value.
| D. | Property, plant and equipment |
No adjustments to the carrying value of property, plant and equipment were estimated as STERIS plc does not have sufficient information as to the specific types, nature, age, condition or location of Cantel’s fixed assets to estimate fair value or conclude whether carrying value approximates fair value.
| E. | Right of use assets and lease liabilities |
No adjustments to the carrying value of right of use assets or liabilities were estimated as STERIS plc does not have sufficient information as to the specific types, nature, age, condition or location of Cantel’s leased assets and obligations to estimate fair value or conclude whether carrying value approximates fair value.
| F. | Convertible debt, debt, and interest rate swaps |
Before the anticipated Closing, STERIS plc intends to adopt ASU 2020-06, “Debt—Debt with Conversion and Other Options (Subtopic 470-20) and Derivatives and Hedging—Contracts in Entity’s Own Equity (Subtopic 815-40).” Therefore, for the purpose of this pro forma financial data, STERIS plc assumed that it would have adopted ASU 2020-06 at the respective closing dates assumed.
Cantel’s convertible debt is comprised of $168,000 aggregate principal amount of convertible senior notes due 2025 (“Convertible Debt”). The indenture governing the Convertible Debt (the “Cantel Indenture”) contains certain provisions that are triggered because of events categorized as Recapitalizations, Reclassifications and Changes of Common Stock including a merger event such as the First Merger. Further, the Cantel Indenture provides for an increased conversion rate if notes are surrendered in connection with a Make-Whole Fundamental Change (as defined in the Cantel Indenture), which includes a merger event such as the First Merger. Therefore, to estimate the fair value of the Convertible Debt at the Closing for the purposes of the preparation of this pro forma financial data, STERIS plc has assumed that the holders of the Convertible Debt would elect to convert
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and surrender their Convertible Debt to obtain the increased conversion rate. STERIS plc has further assumed that it would elect to settle its obligation in cash and would do so within 90 days of the date of Closing. STERIS plc has estimated the fair value of the obligation based on the conversion rate, increased by the number of additional shares specified for a Make-Whole Fundamental Change, multiplied by the Merger Consideration of approximately $84.66 per share would be $356,813. This resulted in a fair value adjustment in the estimated purchase price allocation of $230,196. Of this total, $41,383 increased the value of the Convertible Debt liability to the aggregate principal value of the Convertible Debt of $168,000 and the balance of the adjustment of $188,813 increased additional paid in capital in recognition of the equity component of the Convertible Debt.
Except for the Convertible Debt, it is STERIS plc’s intention to settle Cantel’s other debt obligations at the time of Closing. Therefore, for the purposes of this pro forma financial data, it has been assumed that Cantel’s existing debt, other than the Convertible Debt, would have been settled at the respective closing dates assumed. As a result, no fair value adjustment has been reflected in the estimated purchase consideration allocation related to those obligations.
Cantel utilized interest rate swaps to hedge against fluctuations in the interest rate associated with variable rate borrowings. The recorded fair value of the interest rate swaps as disclosed in the Quarterly Report on Form 10-Q as of and for the three months ended October 31, 2020 was used as the estimate of the fair value for the purpose of these pro forma financial data and no further change in fair value was assumed.
| G. | Deferred tax impact of fair value adjustments |
The estimated deferred tax liability fair value adjustments are associated with the pro forma fair value adjustments to assets to be acquired and liabilities to be assumed including inventory, identifiable intangible assets and Convertible Debt. Jurisdictional details were not available for assets. However, based on information available and the structure of the proposed transaction, STERIS plc has assumed that the majority of the transaction accounting adjustments relate to acquired assets and assumed liabilities attributable to operations in the United States. Therefore, an estimated combined U.S. federal and state statutory rate of 25.0% was applied to all fair value adjustments for the purposes of this pro forma financial data. This estimate of deferred income tax liabilities is preliminary and is subject to change after close of the proposed transaction and based upon management’s final determination of the fair value of assets and liabilities acquired or assumed by jurisdiction.
Net adjustments to deferred income tax liabilities totaling $517,813 were made in connection with the transaction accounting adjustments.
| H. | Goodwill |
Net adjustments totaling $1,802,600 are comprised of eliminating Cantel’s historical goodwill of $660,421 and recording the excess of the estimated purchase consideration over the estimated fair value of net assets acquired of $2,463,021.
| I. | Equity |
Adjustments to ordinary shares at par to eliminate Cantel Common Stock (Canyon Newco Common Stock immediately after the Pre-Closing Merger) at par of $4,693 and record the issuance of ordinary shares at par to Cantel Stockholders (Canyon Newco Common Stock immediately after the Pre-Closing Merger) of $14. Adjustments to additional paid in capital to eliminate Cantel additional paid in capital of $276,450 and record the issuance of ordinary shares in excess of par value to Cantel Stockholders (holders of Canyon Newco Common Stock) immediately after the Pre-Closing Merger) of $2,864,156, record the portion of the fair value of replacement share based compensation awards attributable to service rendered prior to the closing dates of $13,522, and to record the equity component of the Convertible Debt fair value adjustment of $188,813. Adjustment to eliminate the value of Cantel Common Stock held as treasury shares of $70,311. Adjustment to
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eliminate Cantel retained earnings of $572,798 offset by $26,250 of estimated transaction costs, net of tax of $3,750, expected to be incurred and recognized prior to the Closing. Adjustment to eliminate Cantel accumulated other comprehensive income of $25,249.
| J. | Cash |
Adjustment to cash reflecting the estimated payment of purchase price consideration to Cantel Stockholders (Canyon Newco Common Stock immediately after the Pre-Closing Merger) of $715,943 and $30,000 of estimated transaction costs, net of tax, expected to be incurred, recognized and paid prior to the Closing.
Note 4. Pro Forma Transaction Accounting Adjustments to the Unaudited Condensed Combined Statements of Income
The pro forma financial data has been prepared using Cantel’s publicly available financial statements and disclosures, as well as certain assumptions made by STERIS plc. Estimates of the fair value of assets acquired and liabilities assumed are described in Note 3.
| A. | Inventory |
Inventory is expected to turnover during the first-year post acquisition. Therefore, cost of revenues in the pro forma statement of income data for the year ended March 31, 2020 has been adjusted by the full amount of the fair value adjustment of $62,000.
| B. | Other intangible assets |
Total adjustments related to amortization expense of intangible assets are as follows:
| Nine months ended December 31, 2020 |
Year ended March 31, 2020 |
|||||||
| Elimination of historical intangible asset amortization of Cantel and Hu-Friedy |
$ | (26,876 | ) | $ | (26,089 | ) | ||
|
|
|
|
|
|||||
| Estimated amortization of fair value of acquired intangible assets |
124,986 | 166,648 | ||||||
|
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| Net adjustments to selling, general and administrative expenses |
$ | 98,110 | $ | 140,559 | ||||
|
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|
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The amortization expense related to intangible assets acquired is based on estimated fair value amortized over the estimated useful life.
| C. | Share based compensation expense |
Adjustments to cost of revenues, selling, general and administrative expenses and research and development expense to recognize the post close service cost associated with replacement share based compensation awards issued in connection with the proposed transaction. The classification of expense was estimated based on the allocation of expense disclosed in historical Cantel financial statements. No adjustment to eliminate Cantel’s historical share based compensation expense was made.
| Nine months ended December 31, 2020 |
Year ended March 31, 2020 |
|||||||
| Cost of revenues |
$ | 1,103 | $ | 1,598 | ||||
| Selling, general and administrative expenses |
3,262 | 30,164 | ||||||
| Research and development expenses |
362 | 525 | ||||||
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|
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| $4,727 | $32,287 | |||||||
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| D. | Adjustment to reflect the estimated proposed transaction related transaction costs of $94,500. |
| E. | Income taxes |
The statutory federal income tax rate for STERIS plc is the Ireland statutory rate of 12.5% and the statutory federal income tax rate for Cantel is the U.S. statutory income tax rate of 21.0%. Jurisdictional details for Cantel’s assets, liabilities and earnings were not available. Based on information available and the structure of the proposed transaction, STERIS plc has assumed that the majority of the transaction accounting adjustments relate to acquired assets, assumed liabilities, and costs that are attributable to operations in the United States. Therefore, an estimated combined U.S. federal and state statutory rate of 25.0% was used in determining the tax impact of transaction accounting adjustments. Further, an adjustment was made to increase income tax expense related to the addition of the Hu-Friedy consolidated statement of income data for the eight months ended September 30, 2019 as it was a pass-through LLC prior to acquisition by Cantel.
Although not reflected in the pro forma statements of income data, the effective tax rate of STERIS plc after completion of the proposed transaction could be significantly different depending on post-acquisition activities, such as the geographical mix of taxable income affecting state and foreign taxes, among other factors.
After giving consideration to the deductibility of certain transaction costs, estimated net income tax adjustments of $25,710 and $70,837 have been included in the pro forma statements of income data to decrease income tax expense for the nine-month period ended December 31, 2020 and the year ended March 31, 2020, respectively.
Note 5. Pro Forma Other Transaction Adjustments
In accordance with Regulation S-X Article 11, Pro Forma Financial Information, as amended by the final rule, Amendments to Financial Disclosures About Acquired and Disposed Businesses, as adopted by the SEC on May 21, 2020, STERIS plc has also adjusted the pro forma financial data for certain material transactions that are probable to occur in connection with the proposed transaction.
| A. | Financing |
To facilitate the acquisition of Cantel, STERIS plc obtained a bridge financing commitment on January 12, 2021 totaling $2,100,000, which was reduced to $1,350,000 after STERIS plc entered into the Delayed Draw Term Loan Agreement referred to below. The bridge financing commitment will be made available in a single draw on the acquisition closing date to the extent permanent financing is not obtained and utilized. STERIS plc will capitalize debt issuance costs associated with the bridge financing in prepaid expenses and other current assets and amortize the costs over the period between announcement and close or replacement. For the purposes of the pro forma financial data, it has been assumed that the bridge financing commitment will be replaced with long-term financing before closing. Therefore, adjustments of $11,550, $2,887 and $8,663 have been made to reduce cash, decrease tax liabilities and reduce retained earnings, respectively, in the pro forma balance sheet data as of December 31, 2020 for full value of the fees paid in connection with the bridge financing.
On March 19, 2021, STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited entered into a credit agreement (the “Credit Agreement”), with various financial institutions and JPMorgan Chase Bank, N.A., as Administrative Agent, which replaced STERIS plc’s previous credit agreement dated March 23, 2018. The Credit Agreement provides for $1,250,000 of borrowing capacity, in the form of a revolving credit facility, which may be utilized for revolving credit borrowings, swingline borrowings and letters of credit, with sublimits for swingline borrowings and letters of credit. The Credit Agreement permits an incremental increase of commitments available thereunder in an amount not to exceed $625,000 at the discretion of the lenders.
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On March 19, 2021, STERIS plc, STERIS Irish FinCo, STERIS Corporation and STERIS Limited also entered into two term loan agreements. The first term loan agreement (the “Term Loan Agreement”) provides for a term loan facility in the amount of $550,000. The Term Loan Agreement replaced STERIS plc’s previous term loan agreement dated November 18, 2020 which would have matured on November 20, 2023. The second term loan agreement (the “Delayed Draw Term Loan Agreement”), provides for a delayed draw term loan facility in the amount of $750,000. The delayed draw term loan facility cannot be utilized unless, among other conditions, the proposed transaction is consummated, and will terminate if not used at that time. No principal payments are due on the term loans in the first year. During years two and three, quarterly principal payments are due on the last business day of each fiscal quarter for a total of 5% reduction in the original principal amount each year. During years four and five, quarterly principal payments are due on the last business day of each fiscal quarter for a total of 7.5% reduction in the original principal amount each year. The remaining unpaid principal balances of the term loans, together with accrued and unpaid interest thereon, is due and payable at maturity.
The Credit Agreement, the Term Loan Agreement and the Delayed Draw Term Loan Agreement contain leverage and interest coverage covenants. The Credit Agreement and the Term Loan Agreement mature five years from inception. The Delayed Draw Term Loan Agreement matures five years after the date of consummation of the proposed transaction. Borrowings under the Credit Agreement, the Term Loan Agreement and the Delayed Draw Term Loan Agreement bear interest at variable rates based upon a credit ratings pricing grid. For the purposes of the preparation of the pro forma statements of income data, it was assumed that the term loans were outstanding as of April 1, 2019. Interest rates were based on current market interest rates and margins driven by anticipated ratings and assumed to be 1.4% annually for both the nine-month period ended December 31, 2020 and the year ended March 31, 2020.
STERIS plc also intends to issue approximately $1,350,000 of fixed-rate senior, unsecured senior notes. For the purposes of the preparation of the pro forma statements of income data, $1,350,000 in senior notes are assumed to have been issued and outstanding as of April 1, 2019. Further, the senior notes are assumed to have a maturity of 10 years from the issue date and bear an annual interest rate of 2.525% based on indicative credit spreads in December 2020.
The proceeds from various borrowings will be used to fund the cash consideration portion of the proposed transaction, as well as the refinancing, prepayment, replacement, redemption, repurchase, settlement upon conversion, discharge or defeasance of certain existing indebtedness of Cantel and its subsidiaries, transaction expenses, general corporate expenses and working capital needs.
The adjustments to record pro forma interest expense for the pro forma statements of income data were based on (i) Cantel’s actual interest expense incurred during the historical nine-and twelve-month periods, (ii) Hu-Friedy’s actual interest expense incurred during the historical eight-month period ended September 30, 2019, and (iii) estimated incremental interest expense or savings associated with the additional anticipated borrowings to fund the proposed transaction and refinancing of Cantel debt as if the proposed transaction had occurred on April 1, 2019. The fair value of Cantel’s interest rate swap liabilities was estimated for the purchase price consideration and allocation. No further change in the fair value was assumed for the periods presented in the preparation of the pro forma financial data. The interest rates in effect at the time of preparation were assumed to be in effect for the entire pro forma statement of income data periods. The interest expense that STERIS plc will ultimately pay may vary greatly from what is assumed in the pro forma statements of income data and will be based on among other things, the actual future funding needs, ratings received from rating agencies in advance of the registered senior notes offering, the success of STERIS plc’s senior note offering, public debt market conditions in general, movements in U.S. Treasury rates, spreads and market interest rates, including the Base Rate or the Eurocurrency Rate, and the contractual terms of the Credit Agreement.
Net adjustments have been recorded to interest expense of ($7,816) and $20,840 to the nine months ended December 31, 2020 and the year ended March 31, 2020, respectively.
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| B. | Executive Compensation Arrangements |
Certain members of the Cantel management team participate in the Executive Severance Plan, adopted and effective September 24, 2020 (the “Executive Severance Plan”). The Executive Severance Plan includes provisions for the determination of severance, bonus and benefit entitlements as well as acceleration of Cantel RSU Awards in the event of a qualifying resignation or termination during a Change in Control Coverage Period (as defined in the Executive Severance Plan). The actual determination of benefits under the Executive Severance Plan vary based on the individual’s specified participation tier as well as base salary and status of bonus and outstanding equity awards at the time of a qualifying resignation or termination. Because it is probable that several members of the management team participating in the Executive Severance Plan will experience a qualifying resignation or termination at the time of the proposed transaction, STERIS plc concluded that payments in connection with the Executive Severance Plan were probable. To estimate the potential cost of such actions under the Executive Severance Plan, STERIS plc made a number of assumptions including an assumption that certain members of management would experience either a qualifying resignation or termination at the Closing. Based on current base salary, bonus and outstanding equity awards, an adjustment to selling, general and administrative expenses for the estimated cost of $34,591 including the payment entitlements under the Executive Severance Plan, accelerated share-based compensation expense, and any estimated applicable make-whole payments associated with taxes under Section 4999 of the Internal Revenue Code was included in the earliest period presented in the pro forma financial information.
| C. | Income tax expense |
Adjustments of $1,954 and ($5,527) were made to income tax expense in the nine months ended December 31, 2020 and the year ended March 31, 2020, respectively, for the income tax effects of the other transaction accounting adjustments associated with Financing and Executive Compensation Arrangements. An assumed income tax rate of 25% was used.
| D. | Net income from continuing operations per ordinary share |
Pro forma net income from continuing operations per ordinary share for the nine months ended December 31, 2020 and the year ended March 31, 2020, have been calculated based on the estimated weighted-average number of ordinary shares outstanding on a pro forma basis, as described below. The pro forma weighted-average shares outstanding have been calculated as if the acquisition-related shares had been issued and outstanding as of April 1, 2019. The dilutive effective of share-based compensation awards has been calculated as if the acquisition-related replacement awards had been issued as of April 1, 2019. For additional information on calculation of acquisition-related shares, see Note 3.
| Nine months ended December 31, 2020 |
Year ended March 31, 2020 |
|||||||||||||||
| STERIS plc (as reported) |
Pro forma combined |
STERIS plc (as reported) |
Pro forma combined |
|||||||||||||
| Net income from continuing operations attributable to STERIS plc’s shareholders |
$ | 308,549 | $ | 271,952 | $ | 407,605 | $ | 138,406 | ||||||||
| Weighted-average number of ordinary shares outstanding – basic |
85,153 | 99,441 | 84,778 | 99,066 | ||||||||||||
| Plus dilutive effect of share based compensation awards |
698 | 895 | 863 | 1,026 | ||||||||||||
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| Weighted-average number of ordinary shares outstanding – diluted |
85,851 | 100,336 | 85,641 | 100,092 | ||||||||||||
| Net income from continuing operations per ordinary share |
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| Basic |
$ | 3.62 | $ | 2.73 | $ | 4.81 | $ | 1.40 | ||||||||
| Diluted |
3.59 | 2.71 | 4.76 | 1.38 | ||||||||||||
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We may sell the offered securities in and outside the United States:
| • | through underwriters or dealers; |
| • | directly to purchasers; |
| • | in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act to or through a market maker or into an existing trading market on an exchange or otherwise; |
| • | through agents; or |
| • | through a combination of any of these methods or through any other methods of distribution described in an applicable prospectus supplement. |
Any such dealer or agent, in addition to any underwriter, may be deemed to be an underwriter within the meaning of the Securities Act. Any discounts or commissions received by an underwriter, dealer, remarketing firm or agent on the sale or resale of securities may be considered by the SEC to be underwriting discounts and commissions under the Securities Act.
The applicable prospectus supplement for any such offering will include, among other things, the following information:
| • | the terms of the offering; |
| • | the names of any underwriters or agents; |
| • | the name or names of any managing underwriter or underwriters; |
| • | the purchase price or initial public offering price of the securities; |
| • | the net proceeds from the sale of the securities; |
| • | any delayed delivery arrangements; |
| • | any underwriting discounts, commissions and other items constituting underwriters’ compensation; |
| • | any discounts or concessions allowed or reallowed or paid to dealers; |
| • | any commissions paid to agents; and |
| • | any securities exchanges on which the securities may be listed. |
Any securities issued by STERIS plc or STERIS Irish FinCo may not be offered, sold, placed or underwritten and nothing may be done in Ireland in respect of such securities, otherwise than in conformity with the provisions of:
| • | Regulation (EU) 2017/1129, Commission Delegated Regulation (EU) 2019/980, Commission Delegated Regulation (EU) 2019/979 and any Central Bank of Ireland rules issued and/or in force pursuant to Section 1363 of the Irish Companies Act; |
| • | the Irish Companies Act; |
| • | the European Union (Markets in Financial Instruments) Regulations 2017 (as amended) of Ireland; |
| • | Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse, the European Union (Market Abuse) Regulations 2016 and any Central Bank of Ireland rules issued and / or in force pursuant to Section 1370 of the Irish Companies Act; |
| • | Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs); and |
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| • | the Central Bank Acts 1942 to 2018 (as amended) of Ireland and any codes of conduct rules made under Section 117(1) of the Central Bank Act 1989 of Ireland. |
Sale through Underwriters or Dealers
If underwriters are used in the sale, we will execute an underwriting agreement with them regarding the securities. The underwriters will acquire the securities for their own account, subject to conditions in the underwriting agreement. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer the securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. To the extent expressly set forth in the applicable prospectus supplement, these transactions may include over-allotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
Some or all of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for public offerings may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used in the sale of the securities, we will sell the securities to them as principals. They may then resell the securities to the public at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
Direct Sales and Sales through Agents
We may sell the securities directly. In this case, no underwriters or agents would be involved. We may also sell the securities through agents designated from time to time. In the prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities. We will describe the terms of any sales of these securities in the prospectus supplement.
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Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreements, if any, with us and its compensation will be described in the applicable prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
Derivative Transactions and Hedging
We, the underwriters or other agents may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities acquired and purchase options or futures on the securities and other derivative instruments with returns linked to or related to changes in the price of the securities. In order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to the public, including short sales, or by lending the securities in order to facilitate
General Information
We may have agreements with the agents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers, underwriters or remarketing firms may be required to make. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with or perform services for us in the ordinary course of their businesses.
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ENFORCEMENT OF CIVIL LIABILITIES
Ireland
STERIS plc is a public limited company incorporated under the laws of Ireland and STERIS Irish FinCo is a public unlimited company incorporated under the laws of Ireland, each with their registered offices in Ireland. There is some uncertainty whether the courts of Ireland would recognize or enforce judgments obtained against STERIS plc, STERIS Irish FinCo or their respective directors or officers in a U.S. court based on the civil liabilities provisions of U.S. federal or state laws. The United States and Ireland do not currently have a treaty providing for recognition and enforcement of judgments (other than arbitration awards) in civil and commercial matters, and, accordingly, common law rules apply in order to determine whether a judgment of the courts of the State of New York is enforceable in Ireland.
A judgment of the courts of the State of New York obtained against STERIS plc or STERIS Irish FinCo will be enforced by the courts of Ireland only if the following general requirements are met:
| (i) | the courts of the State of New York must have had jurisdiction in relation to the particular defendant according to Irish conflict of law rules (the voluntary submission to jurisdiction by the defendant would satisfy this rule); and |
| (ii) | the judgment must be final and conclusive and the decree must be final and unalterable in the court which pronounces it. |
A judgment can be final and conclusive even if it is subject to appeal or even if an appeal is pending. However, where the effect of lodging an appeal under the applicable law is to stay execution of the judgment, it is possible that, in the meantime, the judgment may not be actionable in Ireland. It remains to be determined whether final judgment given in default of appearance is final and conclusive. Irish courts may also refuse to enforce a judgment of the courts of the State of New York which meets the above requirements for one of the following reasons:
| (i) | the judgment is not for a definite sum of money; |
| (ii) | the judgment was obtained by fraud; |
| (iii) | the enforcement of the judgment in Ireland would be contrary to natural or constitutional justice; |
| (iv) | the judgment is contrary to Irish public policy or involves certain U.S. laws which will not be enforced in Ireland; |
| (v) | jurisdiction cannot be obtained by the Irish courts over the judgment debtors in the enforcement proceedings by personal service in Ireland or outside Ireland under Order 11 of the Rules of the Irish Superior Courts; |
| (vi) | the judgment is irreconcilable with an earlier judgment of the courts of the State of New York; or |
| (vii) | enforcement proceedings are not instituted in Ireland within six years of the date of the judgment of the courts of the State of New York. |
England and Wales
STERIS Limited is a private limited company incorporated under the laws of England and Wales with registered office and principal place of business in England and Wales. As a result, it may not be possible for investors to (i) effect service of process within the United States upon STERIS Limited or (ii) recover any payments of principal, premium, interest, additional amounts or purchase price with respect to the notes or other payments or claims in the United States upon judgments of U.S. courts for any such payments or claims. The United States and England do not currently have a treaty providing for the reciprocal recognition and enforcement of judgments, other than arbitration awards, in civil and commercial matters. Therefore, a final judgment for the payment of a fixed debt, sum of money, payment or claim rendered by any U.S. court based on
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civil liability, whether or not predicated solely upon the U.S. federal securities laws, would not automatically be enforceable in England. In such an action, the English court would not generally reinvestigate the merits of the original matter decided by the U.S. court (subject to the below) and it would usually be possible to obtain summary judgment on such a claim (assuming there is no defense to the claim for payment). Recognition and enforcement of a U.S. judgment by an English court in such an action is conditional upon (among other things):
| • | the U.S. court having had, at the time when proceedings were served, jurisdiction over the original proceedings according to English rules of international law; |
| • | the judgment being final and conclusive on the merits, meaning it is final and unalterable in the court which pronounced it and is for a definite sum of money; and |
| • | the U.S. judgment not being for a sum payable in respect of taxes, or other charges of a like nature or in respect of a penalty or fine, or otherwise based on a U.S. law that an English court considers to relate to penal, revenue or other public law. |
An English court may refuse to enforce such a judgment if the judgment debtor satisfies the court that:
| • | enforcement of the U.S. judgment contravenes English public policy; |
| • | the U.S. judgment has been arrived at by doubling, trebling or otherwise multiplying a sum assessed as compensation for the loss or damages sustained, is otherwise specified in Section 5 of the Protection of Trading Interests Act 1980 or is based on measures designated by the Secretary of State under Section 1 of the Trading Interests Act 1980; |
| • | the U.S. judgment has been obtained by fraud or in breach of English principles of natural or substantial justice; |
| • | the U.S. judgment is a judgment on a matter previously determined by an English court or other court whose judgment is entitled to recognition in England or conflicts with an earlier judgment of such court; |
| • | the English enforcement proceedings were not commenced within the relevant limitation period; or |
| • | the U.S. judgment was obtained contrary to an agreement for the settlement of disputes under which the dispute in question was to be settled otherwise than by proceedings in a U.S. court (to whose jurisdiction the judgment debtor did not submit). |
Based on the foregoing, there can be no assurance that investors will be able to enforce in England judgments obtained in any U.S. court or that such judgments will be recognized in England. In addition, there is no assurance as to when an English court would accept jurisdiction and impose civil liability if the original action was commenced in England, instead of the United States, and predicated solely upon the U.S. federal securities laws.
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Unless otherwise indicated in an applicable prospectus supplement, the validity of the securities under Irish law will be passed upon for us by Matheson and certain matters with respect to English and New York law will be passed upon for us by Jones Day. Any underwriters, dealers or agents may be advised about other issues relating to any offering by their own legal counsel.
STERIS PLC
The consolidated financial statements of STERIS plc for the year ended March 31, 2020 (including the schedule appearing therein) appearing in STERIS plc’s Current Report on Form 8-K, and the effectiveness of STERIS plc’s internal control over financial reporting as of March 31, 2020 (excluding the internal control over financial reporting of entities that were acquired during fiscal 2020) included in its Annual Report (Form 10-K), have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, which as to the report on the effectiveness of STERIS plc’s internal control over financial reporting contains an explanatory paragraph describing the above referenced exclusion of entities that were acquired during fiscal 2020 from the scope of such firm’s audit of internal control over financial reporting, included therein, and incorporated herein by reference. Such consolidated financial statements and STERIS plc management’s assessment of the effectiveness of internal control over financial reporting as of March 31, 2020 (which did not include an evaluation of the internal control over financial reporting of entities that were acquired during fiscal 2020) have been incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
With respect to the unaudited consolidated interim financial information of STERIS plc for the three-month periods ended June 30, 2020 and June 30, 2019, the three- and six-month periods ended September 30, 2020 and September 30, 2019 and the three- and nine-month periods ended December 31, 2020 and December 31, 2019, incorporated by reference in this prospectus, Ernst & Young LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports dated August 7, 2020, November 6, 2020 and February 9, 2021, respectively, included in STERIS plc’s Quarterly Reports on Forms 10-Q for the periods then ended, and incorporated by reference herein, state that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Ernst & Young LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 (the “Act”) for their report on the unaudited interim financial information because that report is not a “report” or a “part” of the Registration Statement prepared or certified by Ernst & Young LLP within the meaning of Sections 7 and 11 of the Act.
CANTEL
The financial statements incorporated in this prospectus by reference from Cantel’s Annual Report on Form 10-K for the year ended July 31, 2020 and the effectiveness of Cantel’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
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DENTAL HOLDING, LLC
The consolidated financial statements of Dental Holding, LLC and subsidiaries as of December 31, 2018 and 2017 and for each of the years in the two-year period ended December 31, 2018, and the consolidated financial statements of Dental Holding, LLC and subsidiaries as of December 31, 2017 and 2016 and for each of the years in the two-year period ended December 31, 2017 incorporated in this prospectus by reference from Cantel’s Current Report on Form 8-K/A filed on December 16, 2019 have been audited by RSM US LLP, independent auditors, as stated in their reports thereon, incorporated herein by reference. Such consolidated financial statements have been so incorporated in this prospectus in reliance upon such reports and upon the authority of such firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following are the estimated expenses of the issuance and distribution of the securities being registered, all of which are payable by us.
| SEC registration fee |
$ | * | ||
| Trustee’s fees and expenses |
** | |||
| Transfer agent and registrar fees |
** | |||
| Printing expenses |
** | |||
| Accountant’s fees and expenses |
** | |||
| Rating agency fees |
** | |||
| Legal fees and expenses |
** | |||
| Miscellaneous |
** | |||
|
|
|
|||
| Total |
$ | ** | ||
|
|
|
| * | Because the amount to be registered consists of an unspecified amount of the securities as may from time to time be offered at indeterminate prices, in accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, the registrant is deferring payment of the registration fee. |
| ** | Estimated expenses are presently not known and cannot be estimated. |
Item 15. Indemnification of Directors and Officers.
STERIS plc and STERIS Irish FinCo Unlimited Company.
STERIS plc is a public limited company incorporated under the laws of Ireland. STERIS Irish FinCo Unlimited Company, or STERIS Irish FinCo, is a public unlimited company incorporated under the laws of Ireland.
Subject to exceptions, the Irish Companies Act does not permit a company to exempt a director or certain officers from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director in relation to the company.
The exceptions, which are provided for in the STERIS Constitution, allow a company to:
(1) purchase and maintain Director & Officer Insurance against any liability attaching in connection with any negligence, default, breach of duty or breach of trust owed to the company; and
(2) indemnify a director or other officer against any liability incurred in defending proceedings, whether civil or criminal (i) in which judgment is given in his or her favor or in which he or she is acquitted or (ii) in respect of which an Irish court grants him or her relief from any such liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.
Additionally, subject to the Irish Companies Act, the STERIS Constitution provides that STERIS plc shall indemnify any former or current executive officer of STERIS plc (excluding directors and secretaries) or any person serving at the request of STERIS plc as a director or executive officer of another company, joint venture, trust or other enterprise against expenses, judgments, fines and settlement amounts actually and reasonably incurred in connection with threatened and actual legal proceedings by reason of his or her role, save for liability arising out of the covered person’s fraud or dishonesty or willful breach of his or her obligation to act honestly in good faith with a view to the best interests of STERIS plc.
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Any determination of entitlement to indemnification shall be made by any person or persons given authority by the STERIS board of directors to act on the matter on behalf of STERIS plc.
In addition to the provisions of the STERIS Constitution, STERIS plc has entered into separate deeds of indemnity with its directors and certain officer to indemnity them against claims brought by third parties (including on behalf of STERIS plc) to the fullest extent permitted by law, save in the case of fraud or dishonesty.
STERIS Irish FinCo’s constitution includes a provision which entitles every officer to be indemnified by STERIS Irish FinCo against any liability incurred by him or her in defending proceedings, whether civil or criminal, in which judgment is given in his or her favor or in which he or she is acquitted, or in connection with any proceedings or application under statute for which relief is granted to him or her by the Court.
STERIS Corporation
STERIS Corporation is incorporated under the laws of the State of Ohio.
Under the Ohio Revised Code, Ohio corporations are authorized to indemnify directors, officers, employees and agents within prescribed limits and must indemnify them under certain circumstances. The Ohio Revised Code does not provide statutory authorization for a corporation to indemnify directors, officers, employees and agents for settlements, fines or judgments in the context of derivative suits. However, it provides that directors (but not officers, employees or agents) are entitled to mandatory advancement of expenses, including attorneys’ fees, incurred in defending any action, including derivative actions, brought against the director, provided that the director agrees to cooperate with the corporation concerning the matter and to repay the amount advanced if it is proved by clear and convincing evidence that the director’s act or failure to act was done with deliberate intent to cause injury to the corporation or with reckless disregard for the corporation’s best interests.
The Ohio Revised Code does not authorize indemnification to a director, officer, employee or agent after a finding of negligence or misconduct in a derivative suit absent a court order. Indemnification is permitted, however, to the extent such person succeeds on the merits. In all other cases, if a director, officer, employee or agent acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, indemnification is discretionary except as otherwise provided by a corporation’s articles, code of regulations or by contract except with respect to the advancement of expenses of directors.
Under the Ohio Revised Code, a director is not liable for monetary damages unless it is proved by clear and convincing evidence that his or her action or failure to act was undertaken with deliberate intent to cause injury to the corporation or with reckless disregard for the best interests of the corporation. There is, however, no comparable provision limiting the liability of officers, employees or agents of a corporation. The statutory right to indemnification is not exclusive in Ohio, and Ohio corporations may, among other things, procure insurance for such persons.
STERIS Limited
STERIS Limited is a private limited company organized under the laws of England and Wales
The English Companies Act 2006 does not permit a company to exempt a director or certain officers from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director in relation to the company.
However, subject to the limitations contained in the English Companies Act 2006, the articles of association of STERIS Limited, allow the company to:
(1) purchase and maintain D&O insurance for the benefit of any person who is or was at any time a director or other officer or employee of the company or any associated company of it or in which it has or had an interest
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(whether direct or indirect) against any liability which may attach to them or loss or expenditure which they may incur in relation to anything done or alleged to have been done or omitted to be done as a director, officer or employee; and
(2) indemnify every director and alternate director (and every director or alternate director of any associated company of the company) and any secretary of the company (each a “relevant officer”) out of the assets of the company against all costs and liabilities incurred by them in relation to any proceedings (whether civil or criminal) or any regulatory investigation or action which relate to anything done or omitted or alleged to have been done or omitted by them in their capacity as such save that no such person shall be indemnified (whether directly or indirectly):
(a) for any liability incurred by them in connection with any negligence, default, breach of duty or breach of trust in relation to the company or any associated company of the company;
(b) for any fine imposed in criminal proceedings which have become final;
(c) for any sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature howsoever arising;
(d) for any liability incurred by them in defending any criminal proceedings in which they are convicted and such conviction has become final;
(e) for any liability incurred by them in defending any civil proceedings bought by the company or an associated company of the company in which a final judgment has been given against him; or
(f) for any liability incurred by them in connection with any application for relief under the English Companies Act 2006 in which the UK court refuses to grant them relief and such refusal has become final; and
(3) advance to every relevant officer (i) funds to meet expenditure incurred or to be incurred by them, among other things, in defending any proceedings (whether civil or criminal) or in an investigation, or action proposed to be taken, by a regulatory authority or (ii) to receive assistance from the Company as will enable any such person to avoid incurring such expenditure, where such proceedings, investigation or action are in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the company or any associated company of the company, provided that they will be obliged to repay any funds provided to them if they are convicted, if judgement is given against them or they are found liable in the proceedings, investigation or action.
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Item 16. Exhibits.
The following documents are exhibits to the registration statement:
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| * | To be filed either by amendment or as an exhibit to a report filed under the Exchange Act, and incorporated herein by reference. |
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Item 17. Undertakings.
Each undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
4. That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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5. That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
6. That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
7. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
8. The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.
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Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, STERIS plc certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mentor, State of Ohio, on the 23rd day of March, 2021.
| STERIS plc | ||||
| By: | /s/ Michael J. Tokich | |||
| Name: | Michael J. Tokich | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
Pursuant to the requirements of the Securities Act of 1933, this registration statements has been signed by the following persons in the capacities indicated on the 23rd day of March, 2021.
| SIGNATURE |
TITLE |
DATE | ||
| * Walter M Rosebrough, Jr. |
President and Chief Executive Officer, Director | March 23, 2021 | ||
| /s/ Michael J. Tokich Michael J. Tokich |
Senior Vice President and Chief Financial Officer | March 23, 2021 | ||
| * Karen L. Burton |
Vice President, Controller and Chief Accounting Officer | March 23, 2021 | ||
| * Dr. Mohsen M. Sohi |
Chairman of the Board | March 23, 2021 | ||
| * Richard C. Breeden |
Director | March 23, 2021 | ||
| * Daniel A. Carestio |
Director | March 23, 2021 | ||
| * Cynthia L. Feldmann |
Director | March 23, 2021 | ||
| * Christopher Holland |
Director | March 23, 2021 | ||
| * Dr. Jacqueline B. Kosecoff |
Director | March 23, 2021 | ||
| * David B. Lewis |
Director | March 23, 2021 | ||
| * Dr. Nirav R. Shah |
Director | March 23, 2021 | ||
| * Dr. Richard M. Steeves |
Director | March 23, 2021 | ||
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| * | The undersigned, by signing his name hereto, does hereby sign this registration statement on behalf of each of the above-indicated directors or officers of the registrant pursuant to powers of attorney executed by such directors or officers. |
| By: | /s/ Michael J. Tokich | |
| Michael J. Tokich | ||
| Attorney-in-Fact | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, STERIS Irish FinCo Unlimited Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mentor, State of Ohio, on the 23rd day of March, 2021.
| STERIS Irish FinCo Unlimited Company | ||||
| By: | /s/ Michael J. Tokich | |||
| Name: | Michael J. Tokich | |||
| Title: | Director | |||
Pursuant to the requirements of the Securities Act of 1933, this registration statements has been signed by the following persons in the capacities indicated on the 23rd day of March, 2021.
| SIGNATURE |
TITLE |
DATE | ||
| * Brian Cooper |
Director | March 23, 2021 | ||
| * John Gilsenan |
Director | March 23, 2021 | ||
| /s/ Michael J. Tokich Michael J. Tokich |
Director | March 23, 2021 | ||
| * Renato G. Tamaro |
Director | March 23, 2021 | ||
| * John Robert Schloss |
Director | March 23, 2021 | ||
| * | The undersigned, by signing his name hereto, does hereby sign this registration statement on behalf of each of the above-indicated directors or officers of the registrant pursuant to powers of attorney executed by such directors or officers. |
| By: | /s/ Michael J. Tokich | |
| Michael J. Tokich | ||
| Attorney-in-Fact | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, STERIS Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mentor, State of Ohio, on the 23rd day of March, 2021.
| STERIS Corporation | ||||
| By: | /s/ Michael J. Tokich | |||
| Name: | Michael J. Tokich | |||
| Title: | Senior Vice President and Chief Financial Officer, Director | |||
Pursuant to the requirements of the Securities Act of 1933, this registration statements has been signed by the following persons in the capacities indicated on the 23rd day of March, 2021.
| SIGNATURE |
TITLE |
DATE | ||
| * Walter M Rosebrough, Jr. |
President and Chief Executive Officer | March 23, 2021 | ||
| /s/ Michael J. Tokich Michael J. Tokich |
Senior Vice President and Chief Financial Officer, Director | March 23, 2021 | ||
| * Karen L. Burton |
Vice President, Controller and Chief Accounting Officer | March 23, 2021 | ||
| * Ronald E. Snyder |
Director | March 23, 2021 | ||
| * | The undersigned, by signing his name hereto, does hereby sign this registration statement on behalf of each of the above-indicated directors or officers of the registrant pursuant to powers of attorney executed by such directors or officers. |
| By: | /s/ Michael J. Tokich | |
| Michael J. Tokich | ||
| Attorney-in-Fact | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, STERIS Limited certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mentor, State of Ohio, on the 23rd day of March, 2021.
| STERIS Limited | ||||
| By: | /s/ Michael J. Tokich | |||
| Name: | Michael J. Tokich | |||
| Title: | Director | |||
Pursuant to the requirements of the Securities Act of 1933, this registration statements has been signed by the following persons in the capacities indicated on the 23rd day of March, 2021.
| SIGNATURE |
TITLE |
DATE | ||
| * J. Adam Zangerle |
Director | March 23, 2021 | ||
| /s/ Michael J. Tokich Michael J. Tokich |
Director | March 23, 2021 | ||
| * | The undersigned, by signing his name hereto, does hereby sign this registration statement on behalf of each of the above-indicated directors or officers of the registrant pursuant to powers of attorney executed by such directors or officers. |
| By: | /s/ Michael J. Tokich | |
| Michael J. Tokich | ||
| Attorney-in-Fact | ||
Exhibit 3.2
Number: 570385
Certificate of Incorporation
Public unlimited company with a share capital
I hereby certify that
STERIS IRISH FINCO
formerly registered as ULC - Private Unlimited Company
has this day been re-registered under the Companies Act 2014 as
Public unlimited company with a share capital
Given under my hand at Dublin, this
Thursday 18 March 2021
| for Registrar of Companies |
|
Signed By: On Behalf of The Registrar of Companies Signing Date: Thu, 18 Mar 2021 03:05:52 GMT +00:00 Reason: Certifying Signature Location: Dublin, Ireland Contact Info: digital.certs@cro.in
|
Exhibit 3.3
MEMORANDUM OF ASSOCIATION
OF
STERIS IRISH FINCO UNLIMITED COMPANY
| 1 | The name of the company is Steris Irish FinCo Unlimited Company (the “Company”). |
| 2 | The Company is a public unlimited company having a share capital registered under Part 19 of the Companies Act 2014. |
| 3 | The objects for which the Company is established are: |
| 3.1 | To provide financing for STERIS Group activities. |
| 3.2 | To carry on all or any of the businesses as aforesaid either as a separate business or as the principal business of the Company and to carry on any other business (whether manufacturing or otherwise) (except the issuing of policies of insurance) which may seem to the Company capable of being conveniently carried on in connection with the above objects or calculated directly or indirectly to enhance the value of or render more profitable any of the Company’s property. |
| 3.3 | To purchase, take on lease or in exchange or otherwise acquire real and chattel real property of all kinds and in particular lands, tenements and hereditaments of any tenure whether subject or not to any charges or incumbrances, and to hold or to sell, develop, let, alienate, mortgage, charge, or otherwise deal with all or any of such lands, tenements or hereditaments for such consideration and on such terms as may be considered expedient. |
| 3.4 | To improve, manage, cultivate, develop, exchange, let on lease or otherwise, mortgage, charge, sell, dispose of, turn to account, grant rights and privileges in respect of, or otherwise deal with all or any part of the property and rights of the Company. |
| 3.5 | To acquire and hold shares and stocks of any class or description, debentures, debenture stock, bonds, bills, mortgages, obligations, investments and securities of all descriptions and of any kind issued or guaranteed by any company, corporation of undertaking of whatever nature and wheresoever constituted or carrying on business or issued or guaranteed by any government, state, dominion, colony, sovereign ruler, commissioners, trust, public, municipal, local or other authority or body of whatsoever nature and wheresoever situated and investments, securities and property of all descriptions and of any kind, including real and chattel real estates, mortgages, reversions, contingencies and choses in action. |
| 3.6 | To invest any moneys of the Company in such investments and in such manner as may from time to time be determined, and to hold, sell or deal with such investments and generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges. |
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| 3.7 | To purchase or otherwise acquire and undertake, the whole or any part of the business, goodwill, property, assets and liabilities of any person, firm or company, or to acquire an interest in, amalgamate with, or enter into partnership or into any arrangement for sharing profits, union of interests, or for co-operation, joint venture or for mutual assistance or reciprocal concession with any such person, firm or company, and to give or accept by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain or sell, mortgage and deal with any shares, debentures, debenture stock or securities so received. |
| 3.8 | To sell or otherwise dispose of the whole or any part of the business, undertaking, property or investments of the Company, either together or in portions for such consideration and on such terms as may be considered expedient. |
| 3.9 | To pay for any property, assets or rights acquired by the Company, and to discharge or satisfy any debt, obligation or liability of the Company, either in cash or in shares with or without preferred or deferred rights in respect of dividend or repayment of capital or otherwise, or by any other securities which the Company has power to issue, or partly in one way and partly in another, and generally on such terms as may be considered expedient. |
| 3.10 | To accept payment for any property, assets or rights disposed of or dealt with or for any services rendered by the Company, or in discharge or satisfaction of any debt, obligation or liability to the Company, either in cash or in shares, with or without deferred or preferred rights in respect of dividend or repayment of capital or otherwise, or in any other securities, or partly in one way and partly in another, and generally on such terms as may be considered expedient. |
| 3.11 | To advance, deposit or lend money, securities and property to or with such persons and on such terms as may seem expedient. |
| 3.12 | To borrow or raise money in any such manner and on such terms and for such purposes as the Company shall think fit, whether alone or jointly and / or severally with any person or persons, including, without prejudice to the generality of the foregoing, by the issue of debentures or debenture stock (perpetual or otherwise), and to secure, with or without consideration, the payment or repayment of any money borrowed, raised, or owing or any debt, obligation or liability of the Company or of any person whatsoever in such manner and on such terms as the Company shall think fit, and in particular by mortgage, charge, lien or debenture or any other security of whatsoever nature or howsoever described, perpetual or otherwise, charged upon all or any of the Company’s property, undertaking, rights or assets of any description, both present and future, including its uncalled capital, and to purchase, redeem or pay off any such securities. |
| 3.13 | To receive money on loan upon such terms as the Company may approve and to guarantee, enter into any suretyship or joint obligation, grant indemnities in respect of, support or secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company, or by both such methods and whether in support of such guarantee or indemnity or suretyship or joint obligation or otherwise, the payment of any debts or the performance of any contract or obligation of any company or |
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| association or undertaking or of any person (including, without prejudice to the generality of the foregoing, the payment of any capital, principal, dividends or interest on any stocks, shares, debentures, debenture stock, notes, bonds or other securities of any person, authority (whether supreme, local, municipal or otherwise) or company) including (without prejudice to the generality of the foregoing) any company which is for the time being the Company’s holding company (within the meaning of section 8 of the Companies Act 2014) or another subsidiary of the Company’s holding company or a subsidiary of the Company or otherwise related with the Company in business notwithstanding the fact that the Company may not receive any consideration, advantage or benefit, direct or indirect, from entering into such guarantee or indemnity or suretyship or joint obligation or other arrangement or transaction contemplated herein. |
| 3.14 | As an object of the Company and as a pursuit in itself or otherwise and whether for the purpose of making a profit or avoiding a loss or managing a current or interest rate exposure or any other exposure or for any other purpose whatsoever, to engage in currency exchange, interest rate and commodity transactions, derivative transactions and any other financial or other transactions of whatever nature in any manner and on any terms and for any purposes whatsoever, including, without prejudice to the generality of the foregoing, any transaction for the purpose of, or capable of being for the purposes of, avoiding, reducing, minimising, hedging against or otherwise managing the risk of any loss, cost, expense, or liability arising, or which may arise, directly or indirectly, from a change or changes in any interest rate or currency exchange rate or in the price or value of any property, asset, commodity, index or liability or from any other risk or factor affecting the Company’s business, including but not limited to dealings whether involving purchases, sales or otherwise in foreign currency, spot and / or forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars and any such other foreign exchange or interest rate or commodity or other hedging arrangements and such other instruments as are similar to, or derived from, any of the foregoing. |
| 3.15 | To the extent that the same is permitted by law, to give financial assistance for the purpose of an acquisition made or to be made by any person of any shares in the Company or the Company’s holding company for the time being (within the meaning of section 8 of the Companies Act 2014) and to give such assistance by any means howsoever permitted by law. |
| 3.16 | To redeem, purchase or otherwise acquire in any manner permitted by law and on such terms and in such manner as the Company may think fit any shares in the Company’s capital. |
| 3.17 | To apply for, purchase or otherwise acquire and hold, use, develop, protect, sell, licence or otherwise dispose of, or deal with patents, brevets d’invention, copyrights, designs, trade marks, secret processes, know-how and inventions and any interest therein. |
| 3.18 | To form, promote, finance or assist any other company or association, whether for the purpose of acquiring all or any of the undertaking, property and assets of the Company or for any other purpose which may be considered expedient. |
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| 3.19 | To facilitate and encourage the creation, issue, conversion and offering for public subscription debentures, debenture stocks, bonds, obligations, shares, stocks, and securities and to act as trustees in connection with any such securities and to take part in the conversion of business concerns and undertakings into companies. |
| 3.20 | To draw, make, accept, endorse, discount, negotiate, and issue bills of exchange, promissory notes, bills of lading and other negotiable or transferable instruments. |
| 3.21 | To act as managers, consultants, supervisors and agents of other companies or undertakings and to provide for such other companies or undertakings, management, advisory, technical, purchasing, selling and other services, and to enter into such contracts and agreements as are necessary or advisable in connection with the foregoing. |
| 3.22 | To establish, regulate and discontinue franchises, agencies and branches, appoint agents and others to assist in the conduct or extension of the Company’s business and to undertake and transact all kinds of trust, agency and franchise business which an individual may legally undertake. |
| 3.23 | To make gifts or grant bonuses to the directors or any other persons who are or have been in the employment of the Company including alternate directors. |
| 3.24 | To make such provision for the education and training of employees and prospective employees of the Company and others as may seem to the Company to be advantageous to or calculated, whether directly or indirectly, to advance the interests of the Company or any member thereof. |
| 3.25 | To provide for the welfare of persons in the employment of or holding office under or formerly in the employment of or holding office under the Company or directors or ex-directors of the Company and the wives, widows and families dependents or connections of such persons by grants of money, pensions or other payments and by forming and contributing to pension, provident or benefit funds or profit sharing or co-partnership schemes for the benefit of such persons and to form, subscribe to or otherwise aid charitable, benevolent, religious, scientific, national or other institutions, exhibitions or objects which shall have any moral or other claims to support or aid by the Company by reason of the locality of its operation or otherwise. |
| 3.26 | To insure the life of any person who may, in the opinion of the Company, be of value to the Company, as having or holding for the Company interests, goodwill or influence or otherwise and to pay the premiums on such insurance. |
| 3.27 | To undertake and execute the office of nominees for the purpose of holding and dealing with any real or personal property or security of any kind for or on behalf of any government, local authority, mortgagee, company, person or body; to act as nominee or agent generally for any purpose and either solely or jointly with another or others for any person, company, corporation, government, state or province, or for any municipal or other authority or local body; to undertake and execute the office of trustee, executor, administrator, registrar, secretary, committee or attorney; to undertake the management of any business or undertaking or transaction, and generally to undertake, perform and fulfil any trust or agency business of any kind and any office of trust or confidence. |
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| 3.28 | To constitute any trusts with a view to the issue of preferred and deferred or other special stocks or securities based on or representing any shares, stocks and other assets specifically appropriated for the purpose of any such trust and to settle and regulate and if thought fit to undertake and execute any such trusts and to issue, dispose of or hold any such preferred, deferred or other special stocks or securities. |
| 3.29 | To establish, on and subject to such terms as may be considered expedient, a scheme or schemes for or in relation to the purchase of, or subscription for, any fully or partly paid shares in the capital of the Company by, or by trustees for, or otherwise for the benefit of, employees of the Company or of its subsidiary or related companies. |
| 3.30 | To vest any real or personal property, rights or interest acquired by or belonging to the Company in any person or company on behalf of or for the benefit of the Company, and with or without any declared trust in favour of the Company. |
| 3.31 | To enter into any arrangements with any governments or authorities (supreme, municipal, local or otherwise), or any corporations, companies or persons that may seem conducive to the attainment of the Company’s objects, or any of them and to obtain from any such government, authority, corporation, company, or person any charters, contracts, decrees, rights, privileges and concessions, including grant aid, which the Company may think desirable, and to carry out, exercise and comply with any such charters, contracts, decrees, rights, privileges, concessions and grant agreements. |
| 3.32 | To apply for, promote and obtain any Act of the Oireachtas, provisional order or licence of the Minister for Jobs, Enterprise and Innovation or other authority for enabling the Company to carry any of its objects into effect, or for effecting any modification of the Company’s constitution, or for any other purpose which may seem expedient, and to oppose any proceedings or applications which may seem calculated, directly or indirectly, to prejudice the Company’s interests. |
| 3.33 | To pay all costs, charges and expenses incurred or sustained in or about the promotion and establishment of the Company or which the Company shall consider to be preliminary thereto and to issue shares as fully or in part paid up, and to pay out of the funds of the Company all brokerage and charges incidental thereto. |
| 3.34 | To remunerate, by cash payment or allotment of shares or securities of the Company credited as fully paid up or otherwise, any person or company for services rendered or to be rendered to the Company whether in the conduct or management of its business, or in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital, or any debentures or other securities of the Company or in or about the formation or promotion of the Company. |
| 3.35 | To distribute in specie or otherwise as may be resolved, any assets of the Company among its members and in particular the shares, debentures, or other securities of any other company belonging to the Company or of which the Company may have the power of disposing. |
| 3.36 | To procure the Company to be registered in any part of the world. |
| 3.37 | To transact or carry on any other business which may seem to the Company capable of being conveniently carried on in connection with any of these objects or calculated |
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| directly or indirectly to enhance the value of or facilitate the realisation of or render profitable any of the Company’s property or rights. |
| 3.38 | To do all or any of the above things in any part of the world, either alone or in conjunction with others and either as principals, agents, contractors, factors, trustees or otherwise and either by or through agents, contractors, factors, trustees or otherwise. |
| 3.39 | The word “company” in this clause except where used in reference to this Company, where the context so admits, shall be deemed to include any partnership or other body of persons whether incorporated or not incorporated or whether domiciled or registered in Ireland or elsewhere and the intention is that in the construction of this clause the objects set forth in each of the foregoing sub-paragraphs shall, except where otherwise expressed in the same paragraph, be regarded as independent objects and accordingly shall in no way be limited or restricted by reference to or inference from the terms of any other sub-clause or the name of the Company, but may be carried out in as full and ample a manner and construed in as wide a sense as if each defined the objects of a separate and distinct company. |
Provided always that the provisions of this clause shall be subject to the Company obtaining, where necessary for the purpose of carrying any of its objects into effect, such licence, permit or authority as may be required by law.
| 4 | The share capital of the Company is $1,500,000,000 divided into 15,000,000 shares of $100.00 each. |
| 5 | The liability of the members is unlimited. |
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Exhibit 3.4
ARTICLES OF ASSOCIATION
OF
STERIS IRISH FINCO UNLIMITED COMPANY
| 1 | Interpretation |
| 1.1 | In this Constitution: |
“Act” means the Companies Act 2014 and every statutory modification or re-enactment thereof for the time being in force;
“Company” means Steris Irish FinCo Unlimited Company;
“Constitution” has the meaning set out in regulation 1.2;
“director” means a director of the Company and the “directors” means the directors or any of them acting as the board of directors of the Company;
“dividend” means dividend or bonus;
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993;
“EEA state” means a state, including the State, which is a contracting party to the EEA Agreement;
“electronic communication”, “electronic signature” and “advanced electronic signature” each has the meaning set out in the Electronic Commerce Act 2000;
“holder” in relation to shares means the member whose name is entered in the register of members as the holder of the shares;
“ordinary resolution” means a resolution passed by a simple majority of the votes cast by members of the Company as, being entitled to do so, vote in person or by proxy at a general meeting of the Company;
“paid” means paid or credited as paid;
“registered person” means such person as is authorised to bind the Company in accordance with section 39 of the Act;
“regulations” means provisions of this Constitution, as amended from time to time;
“secretary” means the secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary;
“single-member company” means a company which, for whatever reason, has, for the time being, a sole member (and this applies notwithstanding a stipulation in this Constitution that there be two members, or a greater number);
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“special resolution” means a resolution passed by not less than 75 per cent of the votes cast by such members of the Company as, being entitled to do so, vote in person or by proxy at a general meeting of the Company;
“State” means the Republic of Ireland;
| 1.2 | The optional provisions of the Act (as defined by section 54 of the Act) shall apply to the Company save to the extent that they are excluded or modified by this Constitution and such optional provisions (as so excluded or modified) together with the regulations contained in this Constitution shall constitute the regulations of the Company (the “Constitution”); |
| 1.3 | Words denoting the singular number include the plural number and vice versa and words denoting a gender include each gender; |
| 1.4 | Words or expressions contained in this Constitution which are not defined in this Constitution but are defined in the Act have the same meaning as in the Act at the date of adoption of this Constitution unless inconsistent with the subject or context; |
| 1.5 | Headings are inserted for convenience only and do not affect the construction of this Constitution; |
| 1.6 | Any reference to a “person” shall be construed as a reference to any individual, firm, company, corporation, undertaking, government, state or agency of a state or any association or partnership (whether or not having separate legal personality); |
| 1.7 | Powers of delegation shall not be restrictively construed but the widest interpretation shall be given to them and except where expressly provided by the terms of delegation, the delegation of a power shall not exclude the concurrent exercise of that power by any other body or person who is for the time being authorised to exercise it under this Constitution or under another delegation of the power; |
| 1.8 | References to “writing” mean the representation or reproduction of words, symbols or other information in a visible form by any method or combination of methods, and “written” shall be construed accordingly; and |
| 1.9 | Any reference to any statute, statutory provision or to any order or regulation shall (save as expressly provided in this Constitution) be construed as a reference to the statute, provision, order or regulation as extended, modified, amended, replaced or re-enacted from time to time (whether before or after the date of adoption of this Constitution) and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom (whether before or after the date of adoption of this Constitution). |
CORPORATE CAPACITY AND AUTHORITY
| 2 | Registered Person |
Where the board of directors authorises any person as being a person entitled to bind the Company (not being an entitlement to bind that is, expressly or impliedly, restricted to a particular transaction or class of transactions), the Company may notify the Registrar of the authorisation in accordance with section 39 of the Act.
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| 3 | Powers of Attorney |
The Company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State. A deed signed by such attorney on behalf of the Company shall bind the Company and have the same effect as if it were under its common seal.
| 4 | The Common Seal |
| 4.1 | The Company shall have a common seal or seals that shall state the Company’s name, engraved in legible characters. |
| 4.2 | The Company’s seal shall be used only by the authority of its directors, or of a committee of its directors authorised by its directors in that behalf. Any instrument to which the Company’s seal shall be affixed shall be: |
| 4.2.1 | signed by a director and be countersigned by the secretary or by a second director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them; or |
| 4.2.2 | signed by a person (including a director) appointed for the purpose by its directors or a committee of its directors authorised by its directors in that behalf. |
| 4.3 | If there is a registered person in relation to the Company, the Company’s seal may be used by such person and any instrument to which the Company’s seal shall be affixed when it is used by the registered person shall be signed by that person and countersigned: |
| 4.3.1 | by the secretary or a director; or |
| 4.3.2 | by some other person appointed for the purpose by its directors or a committee of its directors authorised by its directors in that behalf. |
| 4.4 | Any instrument to which the common seal is affixed shall not be signed by the same person acting both as director and secretary. |
| 4.5 | Section 43(2) and section 43(3) of the Act do not apply. |
| 5 | Power for Company to have Official Seal for use Abroad |
| 5.1 | The Company may have for use in any place abroad (being a territory, district or place not situate in the State) an official seal which shall resemble the common seal of the Company with the addition on its face of the name of every place abroad where it is to be used. |
| 5.2 | A deed or other document to which an official seal is duly affixed shall bind the Company as if it had been sealed with the common seal of the Company. |
| 5.3 | If the Company has an official seal for use in any place abroad it may, by writing under its common seal, authorise any person appointed for the purpose in that place (the “agent”) to affix the official seal to any deed or other document to which the Company is party in that place. |
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| 5.4 | The authority of the agent shall, as between the Company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or, if no period is there mentioned, then until the notice of revocation or determination of the agent’s authority has been given to the person dealing with him or her. |
| 5.5 | The person affixing an official seal shall, by writing under his or her hand, certify on the deed or other instrument to which the seal is affixed, the date on which and the place at which it is affixed. |
SHARE CAPITAL, SHARES AND OTHER INSTRUMENTS
| 6 | Shares |
| 6.1 | Shares in the capital of the Company shall have a nominal value. |
| 6.2 | The Company may allot shares: |
| 6.2.1 | of different nominal values; |
| 6.2.2 | of different currencies; |
| 6.2.3 | with different amounts payable on them; or |
| 6.2.4 | with a combination of two or more of the foregoing characteristics. |
| 6.3 | Without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, any share in the Company may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the Company may from time to time by ordinary resolution determine. |
| 6.4 | The Company may allot shares that are redeemable, which shall be known as “redeemable shares”. |
| 6.5 | The shares or other interest of any member in the Company shall be personal estate and shall not be of the nature of real estate. |
| 6.6 | Except as required by law, no person shall be recognised by the Company as holding any share upon any trust and the Company shall not be bound by or be compelled in any way to recognise (even when having notice of it): |
| 6.6.1 | any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share; or |
| 6.6.2 | save only as the Act or other law otherwise provides, any other rights in respect of any share, except an absolute right to the entirety of it in the registered holder. |
| 6.7 | The foregoing regulations shall not preclude the Company from requiring a member or a transferee of shares to furnish the Company with information as to the beneficial ownership of any share when such information is reasonably required by the Company. |
| 6.8 | The Company shall not have power to issue any bearer instrument. |
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| 7 | Allotment of Shares |
| 7.1 | The directors, or any committee of the directors authorised by the directors in that behalf, shall have at any time unconditional and general authority to allot any shares of the Company. |
| 7.2 | The directors, or any committee of the directors authorised by the directors in that behalf, may allot, grant options over or otherwise dispose of shares to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its shareholders. |
| 7.3 | The pre-emption provisions contained in section 69(6) of the Act shall not apply to any allotment of the Company’s shares. |
| 7.4 | The application of section 69 of the Act shall be modified accordingly. |
| 8 | Calls on Shares |
| 8.1 | Subject to regulation 8.2, the directors may from time to time make calls upon the members in respect of any moneys unpaid on their shares (whether on account of the nominal value of the shares or by way of premium). |
| 8.2 | Regulation 8.1 does not apply to shares where the conditions of allotment of them provide for the payment of moneys in respect of them at fixed times. |
| 8.3 | Each member shall (subject to receiving at least 14 days’ notice specifying the time or times and place of payment) pay to the Company, at the time or times and place so specified, the amount called on the shares. |
| 8.4 | A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made. |
| 8.5 | The application of section 77 of the Act shall be modified accordingly. |
| 9 | Lien |
| 9.1 | The Company shall have a first and paramount lien on every share (not being a fully paid share) for all moneys (whether immediately payable or not) called, or payable at a fixed time, in respect of that share. The directors may at any time declare any share in the Company to be wholly or in part exempt from this regulation. |
| 9.2 | The Company’s lien on a share shall extend to all dividends payable on it. |
| 9.3 | The Company may sell, in such manner as the directors think fit, any shares on which the Company has a lien, but no sale shall be made unless a sum in respect of which the lien exists is immediately payable and the conditions specified in section 80 of the Act are satisfied. |
| 10 | Forfeiture of Shares |
| 10.1 | In accordance with section 81 of the Act, if a member of the Company fails to pay any call or instalment of a call on the day appointed for payment of it, the directors may, at any time thereafter during such time as any part of the call or instalment remains unpaid, serve a notice on the member requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued. |
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| 10.2 | That notice shall: |
| (a) | specify a further day (not earlier than the expiration of 14 days after the date of service of the notice) on or before which the payment required by the notice is to be made; and |
| (b) | state that, if the amount concerned is not paid by the day so specified, the shares in respect of which the call was made will be liable to be forfeited. |
| 10.3 | Any forfeiture shall include all dividends or other moneys payable by the Company in respect of the forfeited shares and the application of section 81 of the Act shall be modified accordingly. |
| 11 | Financial Assistance for Acquisition of Shares |
The Company may give any form of financial assistance that is permitted by the Act for the purpose of an acquisition made or to be made by any person of any shares in the Company or its holding company.
VARIATION IN CAPITAL
| 12 | Variation of Company Capital |
| 12.1 | In accordance with section 83 of the Act (as modified by section 1251 of the Act), the Company may, by special resolution, do any one or more of the following, from time to time: |
| 12.1.1 | consolidate and divide all or any of its shares into shares of a larger nominal value than its existing shares; |
| 12.1.2 | subdivide its shares, or any of them, into shares of a smaller nominal value; |
| 12.1.3 | increase the nominal value of any of its shares by the addition to them of any undenominated capital; |
| 12.1.4 | reduce the nominal value of any of its shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account; |
| 12.1.5 | convert any undenominated capital into shares for allotment as bonus shares to holders of existing shares; |
| 12.1.6 | increase its share capital by new shares of such amount as it thinks expedient; and |
| 12.1.7 | cancel shares of its share capital which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled. |
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| 13 | Reduction in Company Capital |
The Company is authorised to reduce its company capital by way of special resolution in accordance with section 1252 of the Act.
| 14 | Variation of Rights attached to Special Classes of Shares |
If at any time the share capital is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, in accordance with section 982 of the Act, whether or not the Company is being wound up, be varied or abrogated with the consent in writing of the holders of 75 per cent, in nominal value, of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the holders of the shares of that class but not otherwise.
TRANSFER OF SHARES
| 15 | Transfer of Shares and Debentures |
| 15.1 | In accordance with section 94 of the Act, a member may transfer all or any of his or her shares in the Company by instrument in writing in any usual or common form or any other form which the directors may approve. |
| 15.2 | The instrument of transfer of any share shall be executed by or on behalf of the transferor and the transferee. |
| 15.3 | The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the register of members of the Company in respect thereof. |
| 15.4 | The Company shall not register a transfer of shares in or debentures of the Company unless a proper instrument of transfer has been delivered to the Company. |
| 15.5 | Nothing in regulation 15.4 shall prejudice any power of the Company to register as shareholder or debenture holder, any person to whom the right to any shares in, or debentures of the Company, has been transmitted by operation of law. |
| 15.6 | A transfer of the share or other interest of a deceased member of the Company made by his or her personal representative shall, although the personal representative is not himself or herself a member of the Company, be as valid as if the personal representative had been such a member at the time of the execution of the instrument of transfer. |
| 15.7 | On application of the transferor of any share or interest in the Company, the Company shall enter in its register of members, the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee. |
| 16 | Restrictions on Transfer |
| 16.1 | The directors of the Company may in their absolute discretion, and without assigning any reason for doing so, decline to register the transfer of any share. |
| 16.2 | The directors’ power to decline to register a transfer of shares (other than on account of a matter specified in 17.3) shall cease to be exercisable on the expiry of two months after the date of delivery to the Company of the instrument of transfer of the share. |
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| 16.3 | The directors may decline to register any instrument of transfer unless: |
| 16.3.1 | a fee of €10.00 or such lesser sum as the directors may from time to time require, is paid to the Company in respect of it; |
| 16.3.2 | the instrument of transfer is accompanied by the certificate of the shares to which it relates and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer; and |
| 16.3.3 | the instrument of transfer is in respect of one class of share only. |
| 16.4 | If the directors refuse to register a transfer they shall, within two months after the date on which the transfer was lodged with the Company, send to the transferee notice of the refusal. |
| 16.5 | The registration of transfers of shares in the Company may be suspended at such times and for such periods, not exceeding in the whole 30 days in each year, as the directors may from time to time determine. |
| 17 | Transmission of Shares |
Section 96 of the Act shall apply to the transmission of shares in the case of the death of a member of the Company.
| 18 | Share Certificates |
| 18.1 | In accordance with section 99 of the Act, a certificate under the common seal of the Company specifying any shares held by any member shall be prima facie evidence of the title of the member to the shares. |
| 18.2 | The Company shall, within two months after the date: |
| 18.2.1 | of allotment of any of its shares or debentures; or |
| 18.2.2 | on which a transfer of any such shares or debentures is lodged with the Company, |
complete and have ready for delivery the certificates of all shares and debentures allotted or, as the case may be, transferred, unless the conditions of issue of the shares or debentures otherwise provide.
| 19 | Acquisition of Own Shares |
The Company is authorised to acquire its own shares by purchase, or in the case of redeemable shares, by redemption or purchase in accordance with section 105 of the Act.
| 20 | Distributions |
The directors are authorised to make distributions from the Company’s assets in cash or in specie by any means that they in their absolute discretion think fit, subject only to any rule or enactment of law.
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| 21 | Bonus Issues |
| 21.1 | In this regulation “relevant sum” means: |
| (a) | any sum for the time being standing to the credit of the Company’s undenominated capital; |
| (b) | any of the Company’s profits available for distribution; or |
| (c) | any sum representing unrealised revaluation reserves. |
| 21.2 | The Company in general meeting may resolve that any relevant sum be capitalised and applied on behalf of the members who would have been entitled to receive that sum if it had been distributed by way of dividend and in the same proportions in or towards paying up in full unissued shares or debentures of the Company of a nominal value equal to the relevant sum capitalised (such shares or debentures to be allotted and distributed credited as fully paid up to and amongst such holders and in the proportions as aforementioned). |
| 21.3 | The Company in general meeting may resolve that it is desirable to capitalise any part of a relevant sum which is not available for distribution, by applying such sum in paying up in full unissued shares to be allotted as fully paid bonus shares, to those members of the Company who would have been entitled to that sum if it were distributed by way of dividend (and in the same proportions). |
| 21.4 | The directors shall give effect to any resolution under regulations 21.2 and 21.3. |
| 21.5 | For that purpose the directors shall make: |
| 21.5.1 | all appropriations and applications of the undivided profits resolved to be capitalised by the resolution; and |
| 21.5.2 | all allotments and issues of fully paid shares, if any, and generally shall do all acts and things required to give effect to the resolution. |
| 21.6 | Without limiting the foregoing, the directors may: |
| 21.6.1 | make such provision as they think fit for the case of shares becoming distributable in fractions (and, again, without limiting the foregoing, may sell the shares represented by such fractions and distribute the net proceeds of such sale amongst the members otherwise entitled to such fractions in due proportions); and |
| 21.6.2 | authorise any person to enter, on behalf of all the members concerned, into an agreement with the Company providing for the allotment to them, respectively credited as fully paid up, of any further shares to which they may become entitled on the capitalisation concerned or, as the case may require, for the payment by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts remaining unpaid on their existing shares. |
| 21.7 | Any agreement made under such authority shall be effective and binding on all the members concerned. |
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| 21.8 | Where the directors of the Company have resolved to approve a bona fide revaluation of all the fixed assets of the Company, the net capital surplus in excess of the previous book value of the assets arising from such revaluation may be: |
| 21.8.1 | credited by the directors to undenominated capital, other than the share premium account; or |
| 21.8.2 | used in paying up unissued shares of the Company to be issued to members as fully paid bonus shares. |
| 21.9 | The application of section 126 of the Act shall be modified accordingly. |
CORPORATE GOVERNANCE
| 22 | Company Secretary |
| 22.1 | The Company shall have a secretary, who may be one of the directors. |
| 22.2 | The secretary shall be appointed by the directors for such term, at such remuneration and upon such conditions as they may think fit and any secretary so appointed may be removed by them. |
| 23 | Directors |
| 23.1 | The Company shall have at least two directors but not more than ten directors. If at any time there is no director appointed to the Company the members of the Company shall pass an ordinary resolution appointing persons to act as director. |
| 23.2 | In accordance with section 137 of the Act, at least one of the directors shall be a person who is resident in an EEA state. This regulation shall not apply if the Company holds either: |
| 23.2.1 | a bond in the form prescribed by section 137 of the Act; or |
| 23.2.2 | a certificate stating that the Company has a real and continuous link with one or more economic activities that are being carried out in the State as prescribed by section 140 of the Act. |
| 24 | Appointment of Director |
| 24.1 | Any purported appointment of a director without that director’s consent shall be void. |
| 24.2 | The first directors shall be those persons determined in writing by the subscribers of the Constitution or a majority of them. |
| 24.3 | The directors may from time to time appoint any person to be a director, either to fill a casual vacancy or as an addition to the existing directors, but so that the total number of directors shall not at any time exceed the maximum number provided for in this Constitution. |
| 24.4 | Any director appointed to the Company shall not be required to retire at any annual general meeting. |
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| 24.5 | The Company may from time to time, by ordinary resolution, increase or reduce the number of directors. |
| 24.6 | The Company may, by ordinary resolution, appoint another person in place of a director removed from office under section 146 of the Act and, without prejudice to the powers of the directors under regulation 24.3, the Company in general meeting may appoint any person to be a director either to fill a casual vacancy or as an additional director. |
| 24.7 | Subject to regulation 24.1, in the case of a single-member company, the sole member may appoint any person to be a director by serving a notice in writing on the Company which states that the named person is appointed director. |
| 24.8 | The application of section 144(3) of the Act shall be modified accordingly. |
| 25 | Removal of Directors |
| 25.1 | In accordance with section 146 of the Act, the Company may by ordinary resolution remove a director before the expiration of his period of office notwithstanding any agreement between the Company and that director. |
| 25.2 | In addition to, and without prejudice to section 146 of the Act, the Company may, if it is a single-member company, remove any director before the expiration of his period of office notwithstanding any agreement between the Company and that director. Any decision by the sole member to remove a director shall be drawn up in writing and notified to the Company. The written decision of the sole member shall specify the effective date of the removal of such director. The removal of a director under this regulation shall be without prejudice to any claim such director may have for damages for breach of any contract of service between him and the Company. Notification of any such decision taken by the sole member of the Company shall be sent by the Company by recorded delivery to the director at his usual residential address as notified to the Company, or if not so notified, then to the address of the director last known to the Company. |
| 26 | Vacation of Office |
| 26.1 | The office of director shall be vacated if: |
| 26.1.1 | the director is adjudicated bankrupt or being a bankrupt has not obtained a certificate of discharge in the relevant jurisdiction; or |
| 26.1.2 | the director becomes or is deemed to be subject to a disqualification order within the meaning of the Act; or |
| 26.1.3 | the director resigns his or her office by notice in writing to the Company or if he or she resigns his or her office by spoken declaration at any board meeting and such resignation is accepted by resolution of that meeting, in which case such resignation shall take effect at the conclusion of such meeting; or |
| 26.1.4 | the health of the director is such that he or she can no longer be reasonably regarded as possessing an adequate decision making capacity; or |
| 26.1.5 | a declaration of restriction is made in relation to the director and the Company does not satisfy the capital requirements prescribed in section 819 of the Act; or |
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| 26.1.6 | a declaration of restriction is made in relation to the director and, notwithstanding that the Company satisfies the capital requirements prescribed in section 819 of the Act, his or her co-directors resolve at any time during the currency of the declaration that his or her office be vacated; or |
| 26.1.7 | the director is sentenced to a term of imprisonment following conviction of an indictable offence; or |
| 26.1.8 | the director is for more than six months absent, without the permission of the directors, from meetings of the directors held during that period; or |
| 26.1.9 | the director is requested by his or her co-directors to vacate his or her office. Any such request shall be made in writing (and may be in counterparts) by letter, email, facsimile or other means or alternatively shall be made orally at a board meeting at which such co-directors are present in person or by proxy, irrespective of whether the director in respect of whom the request is being made is present or not. The vacation of the said director’s office as director shall take effect on the date the request is made or, if later, the date stated to be the effective date in that request or, if the request is made orally at a board meeting, with effect from the termination of the meeting. Notification of any request under this regulation shall be sent by the Company by recorded delivery to the director at his usual residential address as notified to the Company, or if not so notified, then to the address of the director last known to the Company. |
| 26.2 | The application of section 148(2) of the Act shall be modified accordingly. |
| 27 | Remuneration of Directors |
| 27.1 | The remuneration of the directors shall be such as is determined, from time to time, by the board of directors and such remuneration shall be deemed to accrue from day to day. |
| 27.2 | The directors may also be paid all travelling, hotel and other expenses properly incurred by them in attending and returning from meetings of the directors or any committee of the directors, or general meetings of the Company, or otherwise in connection with the business of the Company. |
| 27.3 | The directors may provide benefits, whether by the payment of gratuities or pensions or by insurance or otherwise, for any director who has held but no longer holds any executive office or employment with the Company or with any body corporate which is or has been a subsidiary of the Company or a predecessor in business of the Company or of any such subsidiary, and for any member of his family (including a spouse and a former spouse) or any person who is or was dependent on him, and may (as well before as after he ceases to hold such office or employment) contribute to any fund and pay premiums for the purchase or provision of any such benefit. |
| 27.4 | Without prejudice to the provisions of regulation 27.2, the directors may exercise all the powers of the Company to purchase and maintain insurance for or for the benefit of any person who is or was: |
| 27.4.1 | a director, other officer, employee or auditor of the Company, or of any body which is or was the holding company or subsidiary of the Company, or in which the Company or such holding company or subsidiary has or had any interest (whether direct or indirect) or with which the Company or such holding company or subsidiary is or was in any way affiliated or associated; or |
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| 27.4.2 | a trustee of any pension fund in which employees of the Company or any other body referred to in regulation 27.4.1 is or has been interested, |
including without limitation insurance against any liability incurred by such person in respect of any act or omission in the actual or purported execution or discharge of his duties or in the exercise or purported exercise of his powers or otherwise in relation to his duties, powers or offices in relation to the relevant body or fund.
PROCEEDINGS OF DIRECTORS
| 28 | General Power of Management and Delegation |
| 28.1 | The business of the Company shall be managed by its directors, who may pay all expenses incurred in promoting and registering the Company and may exercise all such powers of the Company as are not, by the Act or by this Constitution, required to be exercised by the Company in general meeting, but subject to: |
| 28.1.1 | any regulations contained in this Constitution; |
| 28.1.2 | the provisions of the Act; and |
| 28.1.3 | such directions, not being inconsistent with the foregoing regulations or provisions, as the Company in general meeting may (by special resolution) give. |
| 28.2 | The directors may delegate any of their powers to such person or persons as they think fit, including committees. Any such committee shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on it by the directors. |
| 29 | Managing Director |
In accordance with section 159 of the Act, the directors may from time to time appoint one or more of themselves to the office of managing director (by whatever name called) for such period and on such terms as to remuneration and otherwise as they see fit, and, subject to the terms of any agreement entered into in any particular case, may revoke such appointment.
| 30 | Meetings of Directors and Committees |
| 30.1 | The directors may meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit. |
| 30.2 | Questions arising at any such meeting shall be decided by a majority of votes and where there is an equality of votes, the chairperson shall have a second or casting vote. |
| 30.3 | A director may, and the secretary on the requisition of a director shall, at any time summon a meeting of the directors. |
| 30.4 | All directors shall be entitled to reasonable notice of any meeting of the directors but it shall not be necessary to give notice of a meeting of directors to any director who, being resident in the State, is for the time being absent from the State. |
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| 30.5 | The quorum necessary for the transaction of the business of the directors may be fixed by the directors, and unless so fixed shall be two. |
| 30.6 | The continuing directors may act notwithstanding any vacancy in their number but, if and so long as their number is reduced below the number fixed by or pursuant to this Constitution as the necessary quorum of directors, the continuing directors or director may act for the purpose of increasing the number of directors to that number or of summoning a general meeting of the Company but for no other purpose. |
| 30.7 | The directors may elect a chairperson of their meetings and determine the period for which he or she is to hold office, but if no such chairperson is elected, or, if at any meeting the chairperson is not present within 15 minutes after the time appointed for holding it, the directors present may choose one of their number to be chairperson of the meeting. |
| 30.8 | The directors may establish one or more committees consisting in whole or in part of members of the board of directors. |
| 30.9 | A committee established under this Constitution may elect a chairperson of its meetings; if no such chairperson is elected, or if at any meeting the chairperson is not present within 15 minutes after the time appointed for holding it, the members of the committee present may choose one of their number to be chairperson of the meeting. |
| 30.10 | A committee may meet and adjourn meetings as it thinks proper. |
| 30.11 | Questions arising at any meeting of a committee shall be determined by a majority of votes of the members of the committee present, and where there is an equality of votes, the chairperson shall have a second or casting vote. |
| 30.12 | The application of section 160 of the Act shall be modified accordingly. |
| 31 | Written Resolutions of Directors |
| 31.1 | A resolution in writing signed by all the directors of the Company, or by all the members of a committee of them, and who are for the time being entitled to receive notice of a meeting of the directors or, as the case may be, of such a committee, shall be as valid as if it had been passed at a meeting of the directors or such a committee duly convened and held. A resolution executed by an alternate director need not also be signed by his appointer. |
| 31.2 | A resolution referred to in regulation 31.1 may be signed by electronic signature, advanced electronic signature or otherwise as approved by the directors. |
| 31.3 | Subject to regulation 31.4, where one or more of the directors (other than a majority of them) would not, by reason of: |
| (a) | the Act or any other enactment; |
| (b) | the Constitution; or |
| (c) | a rule of law, |
be permitted to vote on a resolution such as is referred to in regulation 31.1, if it were sought to pass the resolution at a meeting of the directors duly convened and held, then such a resolution, notwithstanding anything in regulation 31.1, shall be valid for the purposes of that regulation if the resolution is signed by those of the directors who would have been permitted to vote on it had it been sought to pass it at such a meeting.
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| 31.4 | In a case falling within regulation 31.3, the resolution shall state the name of each director who did not sign it and the basis on which he or she did not sign it. |
| 31.5 | For the avoidance of doubt, nothing in the preceding regulations dealing with a resolution that is signed by other than all of the directors shall be read as making available, in the case of an equality of votes, a second or casting vote to the one of their number who would, or might have been, if a meeting had been held to transact the business concerned, chairperson of that meeting. |
| 31.6 | The application of section 161 of the Act shall be modified accordingly. |
| 32 | Meetings of Directors by Conference |
| 32.1 | A meeting of the directors or of a committee of them may consist of a conference between some or all of the directors or, as the case may be, members of the committee who are not all in one place, but each of whom is able (directly or by means of telephonic, video or other electronic communication) to speak to each of the others and to be heard by each of the others and: |
| 32.1.1 | a director or member of a committee taking part in such a conference shall be deemed to be present in person at the meeting and shall be entitled to vote and be counted in a quorum accordingly; and |
| 32.1.2 | such a meeting shall be deemed to take place in such location as the directors, or members of the committee, decide and failing that where the chairperson of the meeting is located. |
| 32.2 | Subject to the other provisions of the Act, a director may vote in respect of any contract, appointment or arrangement in which he or she is interested and he or she shall be counted in the quorum present at the meeting. |
| 32.3 | The application of section 161 of the Act shall be modified accordingly. |
| 33 | Holding of any other Office or Place of Profit under the Company by Director |
| 33.1 | A director may hold any other office or place of profit under the Company (other than the office of statutory auditor) in conjunction with his or her office of director for such period and on such terms as to remuneration and otherwise as the directors may determine. |
| 33.2 | No director or intending such director shall be disqualified by his or her office from contracting with the Company either with regard to his or her tenure of any such other office or place of profit or as vendor, purchaser or otherwise. |
| 33.3 | In particular, neither shall: |
| 33.3.1 | any contract with respect to any of the matters referred to in regulation 33.2, nor any contract or arrangement entered into by or on behalf of the Company in which a director is in any way interested, be liable to be avoided; nor |
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| 33.3.2 | a director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement, |
by reason of such director holding that office or of the fiduciary relation thereby established.
| 34 | Counting of Director in Quorum and Voting at Meeting at which Director is Appointed |
| 34.1 | A director of the Company, notwithstanding his or her interest, may be counted in the quorum present at any meeting at which: |
| 34.1.1 | that director or any other director is appointed to hold any such office or place of profit under the Company as is mentioned in regulation 33.1; or |
| 34.1.2 | the terms of any such appointment are arranged, |
and he or she may vote on any such appointment or arrangement other than his or her own appointment or the arrangement of the terms of it.
| 35 | Duty of Director to Disclose his or her Interest in Contracts made by Company |
In accordance with section 231 of the Act, it shall be the duty of a director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company, to declare the nature of his or her interest to the Company.
| 36 | Alternate Directors |
| 36.1 | Any director (the “appointer”) of the Company may from time to time appoint any other director of it or any other person to be an alternate director (the “appointee”) as respects him or her. |
| 36.2 | The appointee may act as alternate director to represent more than one director, and an alternate director shall be entitled at meetings of the directors, or any committee of the directors, to one vote for every director whom he represents (and who is not present) in addition to his own vote (if any) as a director, but he shall count as only one for the purpose of determining whether a quorum is present at the meeting. |
| 36.3 | The appointee, while he or she holds office as an alternate director, shall be entitled: |
| (a) | to notice of meetings of the directors; |
| (b) | to attend at such meetings as a director; and |
| (c) | in place of the appointer, to vote at such meetings as a director, |
but shall not be entitled to be remunerated otherwise than out of the remuneration of the appointer.
| 36.4 | Any appointment under this section shall be effected by notice in writing given by the appointer to the Company. |
| 36.5 | Any appointment so made may be revoked at any time by the appointer or by a majority of the other directors or by the Company in general meeting. |
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| 36.6 | Revocation of such an appointment by the appointer shall be effected by notice in writing given by the appointer to the Company. |
| 36.7 | An appointee shall cease to be an alternate director: |
| (a) | if his appointer ceases to be a director; or |
| (b) | on the happening of any event which, if he were a director, would cause him to vacate his office as director; or |
| (c) | if he resigns his office by notice in writing to the Company. |
| 36.8 | The application of section 165 of the Act shall be modified accordingly. |
| 37 | Minutes of Proceedings of Directors |
| 37.1 | The Company shall cause minutes to be entered in books kept for that purpose of: |
| (a) | all appointments of officers made by its directors; |
| (b) | the names of the directors present at each meeting of its directors and of any committee of the directors; and |
| (c) | all resolutions and proceedings at all meetings of its directors and of committees of directors. |
GENERAL MEETINGS AND RESOLUTIONS
| 38 | Annual General Meeting |
| 38.1 | Subject to regulation 38.2 and 38.4, the Company shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year and shall specify the meeting as such in the notices calling it and not more than 15 months shall elapse between the date of one annual general meeting of the Company and that of the next. |
| 38.2 | So long as the Company holds its first annual general meeting within 18 months after the date of its incorporation, it need not hold it in the year of its incorporation or in the following year. |
| 38.3 | The financial statements and report of the directors and the statutory auditors for a financial year shall be laid before a general meeting of the Company not later than nine months after the financial year end date. |
| 38.4 | Where the Company is a single-member company, the Company may elect to dispense with the holding of an annual general meeting where the sole member entitled to attend and vote at such annual general meeting signs before the latest date for the holding of that meeting a written resolution: |
| 38.4.1 | acknowledging receipt of the financial statements that would have been laid before that meeting; |
| 38.4.2 | resolving all such matters as would have been resolved at that meeting; and |
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| 38.4.3 | confirming no change is proposed in the appointment of the person (if any) who, at the date of the resolution, stands appointed as statutory auditor of the Company. |
| 39 | Location and Means for Holding General Meetings |
| 39.1 | An annual general meeting of the Company or an extraordinary general meeting of it may be held inside or outside of the State. |
| 39.2 | If the Company holds its annual general meeting or any extraordinary general meeting outside of the State then, unless all of the members entitled to attend and vote at such meeting consent in writing to its being held outside of the State, the Company shall make, at the Company’s expense, all necessary arrangements to ensure that members can by technological means participate in any such meeting without leaving the State. |
| 39.3 | A meeting referred to in the foregoing regulation may be held in two or more venues (whether inside or outside of the State) at the same time using any technology that provides members, as a whole, with a reasonable opportunity to participate. |
| 40 | Extraordinary General Meetings |
| 40.1 | The directors of the Company may, whenever they think fit, convene an extraordinary general meeting. If, at any time, there are not sufficient directors capable of acting to form a quorum, any director or any member of it may convene an extraordinary general meeting in the same manner as nearly as possible as that in which meetings may be convened by the directors. |
| 40.2 | One or more members of the Company holding, or together holding, at any time not less than 50 per cent of the paid up share capital of the Company as, at that time, carries the right of voting at general meetings of the Company may convene an extraordinary general meeting of the Company. |
| 40.3 | The directors of the Company shall, on the requisition of one or more members holding, or together holding, at the date of the deposit of the requisition, not less than 10 per cent of the paid up share capital of the Company, as at the date of the deposit carries the right of voting at general meetings of the Company, forthwith proceed duly to convene an extraordinary general meeting of the Company. |
| 40.4 | The requisition shall state the objects of the meeting and shall be signed by the requisitionists and deposited at the registered office of the Company and may consist of several documents in like form each signed by one or more requisitionists. |
| 40.5 | If the directors do not within 21 days after the date of the deposit of the requisition proceed to convene a meeting to be held within two months after that date (the “requisition date”), the requisitionists, or any of them representing more than 50 per cent of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held after the expiration of three months after the requisition date. |
| 40.6 | Any reasonable expenses incurred by the requisitionists by reason of the failure of the directors to convene a meeting shall be repaid to the requisitionists by the Company and any sum so repaid shall be retained by the Company out of any sums due or to become due from the Company by way of fees or other remuneration in respect of their services to such of the directors as were in default. |
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| 40.7 | For the purposes of regulations 40.3 to 40.6, the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such notice of it as is required by section 181 of the Act. |
| 40.8 | A meeting convened under regulation 40.2 and 40.5 shall be convened in the same manner as nearly as possible as that in which meetings are to be convened by directors. |
| 41 | Persons entitled to Notice of General Meetings |
| 41.1 | Notice of every general meeting of the Company (“relevant notice”) shall be given to: |
| 41.1.1 | every member; |
| 41.1.2 | the personal representative of a deceased member of the Company, which member would, but for his or her death, be entitled to vote at the meeting; |
| 41.1.3 | the assignee in bankruptcy of a bankrupt member of the Company (being a bankrupt member who is entitled to vote at the meeting); and |
| 41.1.4 | the directors and secretary of the Company. |
| 41.2 | Unless the Company is entitled to and has availed itself of the audit exemption under sections 360 or 365 of the Act (and, where relevant, section 399 has been complied with in that regard), the statutory auditors of the Company shall be entitled to: |
| 41.2.1 | attend any general meeting of the Company; |
| 41.2.2 | receive all notices of, and other communications relating to, any general meeting which any member of the Company is entitled to receive; and |
| 41.2.3 | be heard at any general meeting which they attend on any part of the business of the meeting which concerns them as statutory auditors. |
| 42 | Notice of General Meetings |
| 42.1 | A meeting of the Company, other than an adjourned meeting, shall be called: |
| 42.1.1 | in the case of the annual general meeting or an extraordinary general meeting for the passing of a special resolution, by not less than 21 days’ notice; |
| 42.1.2 | in the case of any other extraordinary general meeting, by not less than seven days’ notice. |
| 42.2 | A meeting of the Company shall, notwithstanding that it is called by shorter notice than that specified in regulation 42.1, be deemed to have been duly called if it is so agreed by: |
| 42.2.1 | all the members entitled to attend and vote at the meeting; and |
| 42.2.2 | unless no statutory auditors of the Company stand appointed in consequence of the Company availing itself of the audit exemption under sections 360 or 365 of the Act (and, where relevant, section 399 has been complied with in that regard), the statutory auditors of the Company. |
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| 42.3 | A resolution may be proposed and passed as a special resolution at a meeting of which less than 21 days’ notice has been given if it is so agreed by a majority in number of the members having the right to attend and vote at any such meeting, being a majority either: |
| 42.3.1 | together holding not less than 90 per cent in nominal value of the shares giving that right; or |
| 42.3.2 | together representing not less than 90 per cent of the total voting rights at that meeting of all the members. |
| 42.4 | Where notice of a meeting is given by posting it by ordinary prepaid post to the registered address of a member, then, for the purposes of any issue as to whether the correct period of notice for that meeting has been given, the giving of the notice shall be deemed to have been effected on the expiration of 24 hours following posting. |
| 42.5 | In determining whether the correct period of notice has been given by a notice of a meeting, neither the day on which the notice is served nor the day of the meeting for which it is given shall be counted. |
| 42.6 | The notice of a meeting shall specify: |
| (a) | the place, the date and the time of the meeting; |
| (b) | the general nature of the business to be transacted at the meeting; |
| (c) | in the case of a proposed special resolution, the text or substance of that proposed special resolution; and |
| (d) | with reasonable prominence a statement that: |
| (i) | a member entitled to attend and vote is entitled to appoint a proxy using the form set out in section 184 of the Act to attend, speak and vote instead of him or her; |
| (ii) | a proxy need not be a member; and |
| (iii) | the time by which the proxy must be received at the Company’s registered office or some other place within the State as is specified in the statement for that purpose. |
| 42.7 | The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting. |
| 43 | Quorum |
| 43.1 | No business shall be transacted at any general meeting of the Company unless a quorum of members is present at the time when the meeting proceeds to business. |
| 43.2 | Two members of the Company present in person or by proxy at a general meeting of it shall be a quorum. |
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| 43.3 | In the case of a single-member company, one member of the Company present in person or by proxy at a general meeting of it shall be a quorum. |
| 43.4 | If within 15 minutes after the time appointed for a general meeting a quorum is not present, then: |
| 43.4.1 | where the meeting has been convened upon the requisition of members, the meeting shall be dissolved; |
| 43.4.2 | in any other case: |
| (a) | the meeting shall stand adjourned to the same day in the next week, at the same time and place or to such other day and at such other time and place as the directors may determine; and |
| (b) | if at the adjourned meeting a quorum is not present within half an hour after the time appointed for the meeting, the members present shall be a quorum. |
| 44 | Proxies |
| 44.1 | Subject to regulation 44.3, any member of the Company entitled to attend and vote at a meeting of the Company shall be entitled to appoint another person (whether a member or not) as his or her proxy to attend and vote instead of him or her. |
| 44.2 | A proxy so appointed shall have the same right as the member to speak at the meeting and to vote on a show of hands and on a poll. |
| 44.3 | A member of the Company shall not be entitled to appoint more than one proxy to attend on the same occasion. |
| 44.4 | The instrument appointing a proxy (the “instrument of proxy”) shall be in writing: |
| (a) | under the hand of the appointer or of his or her attorney duly authorised in writing; or |
| (b) | if the appointer is a body corporate, either under seal of the body corporate or under the hand of an officer or attorney of it duly authorised in writing. |
| 44.5 | The instrument of proxy and the power of attorney or other authority, if any, under which it is signed, or a notarially certified copy of that power or authority, shall be deposited at the registered office of the Company concerned or at such other place within the State as is specified for that purpose in the notice convening the meeting, and shall be so deposited not later than the ‘appointed time’ as defined in regulation 44.6. |
| 44.6 | The appointed time is: |
| (a) | immediately before the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote; or |
| (b) | in the case of a poll, immediately before the time appointed for the taking of the poll, |
and the application of section 183(6) of the Act shall be modified accordingly.
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| 44.7 | The depositing of the instrument of proxy referred to in regulation 44.5 may, rather than it being effected by sending or delivering the instrument, be effected by communicating the instrument to the Company by electronic means, and this regulation likewise applies to the depositing of anything else referred to in regulation 44.5. |
| 44.8 | If regulation 44.5 or regulation 44.6 is not complied with, the instrument of proxy shall not be treated as valid. |
| 44.9 | Subject to regulation 44.10, a vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the appointer or revocation of the proxy or of the authority under which the proxy was executed or the transfer of the share in respect of which the proxy is given. |
| 44.10 | Regulation 44.9 does not apply if notice in writing of the occurrence of one of the events mentioned in that regulation is received by the Company concerned at its registered office before the commencement of the meeting or adjourned meeting at which the proxy is used. |
| 44.11 | Subject to regulation 44.12, if, for the purpose of any meeting of the Company, invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the Company’s expense to some only of the members entitled to be sent a notice of the meeting and to vote at it by proxy, any officer of the Company who knowingly and intentionally authorises or permits their issue in that manner shall be guilty of a category 3 offence. |
| 44.12 | An officer shall not be guilty of an offence under regulation 44.11 by reason only of the issue to a member, at his or her request in writing, of a form of appointment naming the proxy or of a list of persons willing to act as proxy if the form or list is available on request in writing to every member entitled to vote at the meeting by proxy. |
| 45 | Form of Proxy |
| 45.1 | An instrument appointing a proxy shall be in the following form or a form as near to it as circumstances permit: |
[name of Company] (“the Company”)
[name of member] (“the Member”) of [address of member] being a member of the Company hereby appoint/s [name and address of proxy] or failing him or her
[name and address of alternative proxy] as the proxy of the Member to attend, speak and vote for the Member on behalf of the Member at the (annual or extraordinary, as the case may be) general meeting of the Company to be held on the [date of meeting] and at any adjournment of the meeting.
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The proxy is to vote as follows:
| Voting instructions to Proxy
(choice to be marked with an “X”) | ||||||
| Number or description of resolution |
In favour | Abstain | Against | |||
| 1. | ||||||
| 2. | ||||||
| 3. | ||||||
| Unless otherwise instructed the proxy will vote as he or she thinks fit.
|
|
Signature of Member |
|
Date: |
| 46 | Representation of Bodies Corporate at Meetings of Companies |
| 46.1 | A body corporate may, if it is a member of the Company, by resolution of its directors or other governing body authorise such person (in this section referred to as an “authorised person”) as it thinks fit to act as its representative at any meeting of the Company or at any meeting of any class of members of the Company. |
| 46.2 | A body corporate may, if it is a creditor (including a holder of debentures) of the Company, by resolution of its directors or other governing body authorise such person (in this section also referred to as an “authorised person”) as it thinks fit to act as its representative at any meeting of any creditors of the Company held in pursuance of the Act or the provisions contained in any debenture or trust deed, as the case may be. |
| 46.3 | An authorised person shall be entitled to exercise the same powers on behalf of the body corporate which he or she represents as that body corporate could exercise if it were an individual member of the Company, creditor or holder of debentures of the Company. |
| 46.4 | The chairperson of a meeting may require a person claiming to be an authorised person within the meaning of this section to produce such evidence of the person’s authority as such as the chairperson may reasonably specify and, if such evidence is not produced, the chairperson may exclude such person from the meeting. |
| 47 | Proceedings at Meetings |
| 47.1 | The chairperson, if any, of the board of directors shall preside as chairperson at every general meeting of the Company, or if there is no such chairperson, or if he or she is not present within 15 minutes after the time appointed for the holding of the meeting or is unwilling to act, the directors present shall elect one of their number to be chairperson of the meeting. |
| 47.2 | If at any meeting no director is willing to act as chairperson or if no director is present within 15 minutes after the time appointed for holding the meeting, the members present and entitled to vote shall choose one of the members present and entitled to vote to be chairperson of the meeting. |
| 47.3 | The chairperson may, with the consent of any meeting at which a quorum is present, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place. |
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| 47.4 | No business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. |
| 47.5 | When a meeting is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting but, subject to that, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting. |
| 47.6 | Unless a poll is demanded in accordance with section 189 of the Act, at any general meeting: |
| (a) | a resolution put to the vote of the meeting shall be decided on a show of hands; and |
| (b) | a declaration by the chairperson that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the Company shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution. |
| 47.7 | Where there is an equality of votes, whether on a show of hands or on a poll, the chairperson of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote in addition to any other vote he or she may have. |
| 47.8 | The application of section 187 of the Act shall be modified accordingly. |
| 48 | Votes of Members |
| 48.1 | Subject to any rights or restrictions for the time being attached to any class or classes of shares, where a matter is being decided: |
| (a) | on a show of hands, every member present in person and every proxy shall have one vote, but so that no individual member shall have more than one vote; and |
| (b) | on a poll, every member shall, whether present in person or by proxy, have one vote for each share of which he or she is the holder or for each €15 of stock held by him or her, as the case may be. |
| 48.2 | Where there are joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose, seniority shall be determined by the order in which the names of the joint holders stand in the register of members. |
| 48.3 | Each of the following: |
| (a) | a member of unsound mind; |
| (b) | a member who has made an enduring power of attorney; |
| (c) | a member in respect of whom an order has been made by any court having jurisdiction in cases of unsound mind; |
may vote, whether on a show of hands or on a poll, by his or her committee, donee of a registered enduring power of attorney, receiver, guardian or other person appointed by the foregoing court.
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| 48.4 | Any such committee, donee of an enduring power of attorney, receiver, guardian, or other person may speak and vote by proxy, whether on a show of hands or on a poll. |
| 48.5 | No member shall be entitled to vote at any general meeting of the Company unless all calls or other sums immediately payable by him or her in respect of shares in the Company have been paid. |
| 48.6 | No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered, and every vote not disallowed at such meeting shall be valid for all purposes. |
| 48.7 | Any such objection made in due time shall be referred to the chairperson of the meeting, whose decision shall be final and conclusive. |
| 48.8 | The application of section 188 of the Act shall be modified accordingly. |
| 49 | Unanimous Written Resolutions |
| 49.1 | A resolution in writing signed by all the members of the Company for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the Company duly convened and held and if described as a special resolution shall be deemed to be a special resolution. |
| 49.2 | A resolution passed in accordance with regulation 49.1 shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof by any member, the statement shall be prima facie evidence that it was signed by him or her on that date. |
| 49.3 | If a resolution passed in accordance with regulation 49.1 is not contemporaneously signed, the Company shall notify the members, within 21 days after the date of delivery to it of the documents referred to in regulation 49.4, of the fact that the resolution has been passed. |
| 49.4 | The signatories of a resolution passed in accordance with regulation 49.1 shall, within 14 days after the date of its passing, procure delivery to the Company of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by the Act, such delivery may be effected by electronic mail or the use of a facsimile machine. |
| 49.5 | This regulation does not apply to a resolution to remove a director or a resolution to effect the removal of a statutory auditor from office, or so as not to continue him or her in office. |
| 49.6 | A resolution referred to in regulation 49.1 may be signed by electronic signature or advanced electronic signature. |
| 50 | Single-Member Companies — Absence of need to hold General Meetings |
| 50.1 | All the powers exercisable by the Company in general meeting under this Constitution or the Act or otherwise shall be exercisable, in the case of a single-member company, by the sole member without the need to hold a general meeting for that purpose. |
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| 50.2 | Subject to regulation 50.3, any provision of this Constitution and the Act which enables or requires any matter to be done or to be decided by the Company in general meeting, or requires any matter to be decided by a resolution of the Company, shall be deemed to be satisfied, in the case of a single-member company, by a decision of the member which is drawn up in writing and notified to the Company in accordance with this regulation. |
| 50.3 | Regulation 50.1 shall not empower the sole member of a single-member company to exercise the powers to remove a statutory auditor from, or not continue a statutory auditor in, office without holding the requisite meeting provided for in the Act. |
| 51 | Minutes of Proceedings of Meetings of the Company |
The Company shall, as soon as may be after their holding or passing, cause minutes of all proceedings of general meetings of it, and the terms of all resolutions of it, to be entered in books kept for that purpose. All such books kept by the Company in pursuance of this regulation shall be kept at the same place.
| 52 | Service of Notices on Members |
| 52.1 | Any notice to be given, served, sent or delivered pursuant to this Constitution (save where it is to be given, served, sent or delivered by electronic means) shall be in writing. |
| 52.2 | A notice or document to be given, served, sent or delivered in pursuance of this Constitution may be given to, served on, sent or delivered to any member by the Company: |
| (a) | by hand delivering it to the member or his authorised agent or where the member is a body corporate, to any officer of that body corporate; |
| (b) | by leaving it at the registered address of the member; |
| (c) | by sending it by post in a pre-paid letter addressed to the member at the registered address of the member; |
| (d) | by sending it by courier in a pre-paid letter addressed to the member at the registered address of the member; |
| (e) | by sending it by means of electronic mail or facsimile or other means of electronic communication approved by the directors to the address of the member notified to the Company by the member for such purpose (or if not so notified, then to the address of the member last known to the Company). |
| 52.3 | Any notice served, given, sent or delivered in accordance with the foregoing regulations shall be deemed, in the absence of any agreement to the contrary between the Company (or, as the case may be, the officer of it) and the member, to have been served, given, sent or delivered: |
| (a) | in the case of hand delivery, at the time of delivery (or, if delivery is refused, when tendered); |
| (b) | in the case of it being left, at the time that it is left; |
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| (c) | in the case of its being posted or couriered on any day other than a Friday, Saturday or Sunday, 24 hours after despatch and in the case of its being posted or couriered: |
| (i) | on a Friday – 72 hours after despatch; or |
| (ii) | on a Saturday or Sunday – 48 hours after despatch; |
| (d) | in the case of electronic means being used in relation to it, 12 hours after despatch. |
| 52.4 | In the case of joint holders of a share, all notices or other documents shall be sent to the joint holder whose name stands first in the register in respect of the joint holding. Any notice or other document so sent shall be deemed for all purposes sent to all the joint holders. |
| 52.5 | Every member shall be bound by a notice served, given, sent or delivered as aforesaid notwithstanding that the Company may have notice of the death, insanity, bankruptcy, liquidation or disability of such member. |
| 52.6 | Notwithstanding anything contained in these regulations the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than Ireland. |
| 52.7 | The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed. |
| 52.8 | In this regulation “registered address” in relation to a member, means the address of the member as entered in the register of members. |
| 52.9 | Section 218 of the Act does not apply. |
LIABILITY OF OFFICERS
| 53 | Fiduciary duties of directors |
For the purposes of section 228(1) of the Act, the reasonable use by a director for his or her own benefit, or anyone else’s benefit, of any of the Company’s property where such use is directly or indirectly connected with the business objectives of the Company shall be permitted.
| 54 | Indemnity for Officers |
Subject to the provisions of the Act, the Company may indemnify any officer of the Company against any liability incurred by him or her in defending proceedings, whether civil or criminal, in which judgment is given in his or her favour or in which he or she is acquitted, or in connection with any proceedings or application under statute for which relief is granted to him or her by the court.
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We, the several persons whose names and addresses are subscribed, wish to be formed into a company in pursuance of this constitution, and we agree to take the number of shares in the capital of the company set opposite our respective names.
| Names, Addresses and Descriptions of Subscribers |
Number of Shares Taken by each Subscriber | |||
| 1. |
|
200
| ||
|
John Schloss
For and on behalf of
STERIS FinCo S.á.r.l.
25-A Boulevard Royal, L-2449 Luxembourg
Body Corporate
|
||||
| Total shares taken | 200 | |||
|
Signature of the above subscriber(s), attested by the following witness:
Dated the 15th day of October 2015
Name: Nancy H Donnelly
Address: 5960 Heisley Road, Mentor, OH 44060
Signature of witness: Nancy H Donnelly | ||||
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Exhibit 3.5
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
STERIS CORPORATION
ARTICLE I
The name of the corporation (which is hereinafter referred to as the “Corporation”) is: STERIS Corporation.
ARTICLE II
The place in Ohio where its principal office is to be located is the City of Mentor in Lake County.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under Chapter 1701 of the Ohio Revised Code (the “Code”).
ARTICLE IV
Section 1. Capital Stock. The Corporation shall be authorized to issue 1,000 shares of capital stock, of which 1,000 shares shall be shares of Common Stock, without par value (“Common Stock”).
Section 2. Preferred Stock. Shares of Preferred Stock may be issued from time to time in one or more series (“Preferred Stock”). The Board of Directors of the Corporation (the “Board”) is hereby authorized to fix the voting rights, if any, designations, powers, preferences and the relative, participation, optional or other rights, if any, and the qualification, limitations or restrictions thereof, of any unissued series of Preferred Stock, and to fix the number of shares constituting such series, and to increase or decrease the number of shares of any such series (but not below the number of shares thereof then outstanding).
Section 3. Voting. Except as otherwise provided by law, or by the resolution or resolutions adopted by the Board designating the rights, powers and preferences of any series of Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Each share of Common Stock shall have one vote, and the Common Stock shall vote together as a single class.
ARTICLE V
The Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in these Articles of Incorporation, and any other provisions authorized by the laws of the State of Ohio at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to these Articles of Incorporation in their present form or as hereafter amended are granted subject to the right reserved in this Article.
ARTICLE VI
A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Code as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification.
- 2 -
Exhibit 3.6
AMENDED AND RESTATED
CODE OF REGULATIONS
OF
STERIS CORPORATION
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meeting. Meetings of the shareholders may be held either within or without the State of Ohio.
Section 2. Annual Meeting. The annual meeting of the shareholders, whereat the shareholders shall elect a Board of Directors, and transact such other business as may properly be brought before the meeting, shall be held on such date and at such time as shall be determined by resolution of the Board of Directors.
Section 3. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, other than those regulated by statute or by the Articles of Incorporation, may be called at any time by the Chairman of the Board, President, any Vice President, or a majority of the Board of Directors, with or without a meeting. Such request shall state the purpose or purposes of the proposed meeting. Upon receipt of any such request, it shall be the duty of the President or Secretary to call a special meeting of the shareholders to be held at such time, not less than seven (7) nor more than sixty (60) days thereafter, unless a greater period of notice is required by statute in a particular case, as the President or Secretary may fix. If the President or Secretary shall neglect to issue such call, the person or persons making the request may issue the call.
Section 4. Notice of Meetings. Written notice of the annual or any special meeting of shareholders, stating the place, the date and the time and, in the case of a special meeting, the purpose of the meeting, shall be faxed, e-mailed with electronic confirmation of receipt, served upon or mailed, postage prepaid, not less than seven (7) nor more than sixty (60) days before such meeting, unless a greater period of notice is required by statute in a particular case, to each shareholder entitled to notice thereof being of record on the date fixed as a record date, or, if no record date be fixed, then of record ten (10) days next preceding the date of the meeting, at such address as appears on the transfer books of the Corporation.
Section 5. Notice to Joint Shareholders. All notices with respect to any shares to which persons are jointly entitled may be given to that one of such persons who is named first upon the transfer books of the Corporation and notice so given shall be sufficient notice to all the holders of such shares.
Section 6. Business at Special Meetings. No business other than that specified in the call therefor shall be considered at any special meeting.
Section 7. Quorum. The holders of a majority of the issued and outstanding shares entitled to vote, present in person or represented by proxy, shall be requisite to constitute a quorum at all meetings of the shareholders, except as otherwise provided by statute or by the Articles of incorporation or by these regulations. If, however, any meeting of shareholders
cannot be organized because a quorum is not present, the holders of a majority of stock entitled to vote thereat, present in person or by proxy, shall have the power, except as otherwise provided by statute or the Articles of Incorporation, to adjourn the meeting lo such time and place as they may so determine. At any adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted if the meeting had been held as originally called.
Section 8. Requisite Vote. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting powers, present in person or represented by proxy, shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the statutes or of the Articles of Incorporation or of these Regulations, a different vote is required, in which case such express provisions shall govern and control the decision of such question.
Section 9. Voting Rights. At every meeting, each shareholder entitled to vote shall have the right to vote for every share having voting power standing in his name on the books of the Corporation. The candidates receiving the highest number of votes, up to the number of directors to be elected, shall be elected. Upon demand made by a shareholder at any election for directors before the voting begins, the election shall be by ballot.
Section 10. Proxies. Any shareholder entitled to vote at a meeting of the shareholders may be represented by proxy or proxies appointed by an instrument in writing signed by such shareholder, or by his duly authorized attorney, and submitted to the Secretary at or before such meeting.
Section 11. List of Shareholders. At the next meeting following a change in ownership, the officer or agent having charge of the transfer books for shares of the Corporation shall make, at least five (5) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting (being shareholders of record on the date fixed as a record date, or if no record date be fixed, then of record ten (10) days preceding the date of the meeting) , arranged in alphabetical order, with the address of and the number of shares held by each, which list shall be kept on file at the registered office of the Corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting.
Section 12. Organization. All meetings of the shareholders shall be presided over by the Chairman of the Board or President, the Secretary of the Corporation shall act as secretary of all meetings of the shareholders but, in the absence of the Secretary at any meeting of the shareholders, the presiding officer may appoint any person to act as secretary of the meeting.
Section 13. Inspectors of Election. In advance of any meeting of the shareholders, the Board of Directors may appoint inspectors of election, who need not be shareholders, to act at such meeting or any adjournment thereof. If inspectors of election are not so appointed, the Chairman of any such meeting may and, on the request of any shareholder or his proxy, shall make such appointment at the meeting. The inspectors of election shall do all such acts as may be proper conduct the election or vote with fairness to all shareholders, and shall make a written report of any matter determined by them and execute a certificate of any fact found by them, if requested by the Chairman of the meeting or any shareholder or his proxy. If there be three or more inspectors of election, the decision, act or certificate of a majority shall be effective in all respects as the decision, act or certificate of all.
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Section 14. Informal Action by Shareholders. Any action required to be taken at a meeting of the shareholders may be taken without a meeting, if a consent in writing setting forth the action so taken is signed by all of the shareholders who would be entitled to vote at a meeting for such purpose, and filed with the Secretary of the Corporation.
ARTICLE II
DIRECTORS
Section 1. Number, Qualifications and Term. The number of directors which shall constitute the whole Board of Directors (sometimes hereinafter referred to as the “Board”) shall be fixed from time to time by resolution of the holders of a majority of the shares entitled to elect directors or by resolution of the Board of Directors. No reduction in the number of directors shall have the effect of removing any director from the Board prior to the expiration of his term of office. Directors shall be natural persons of full age and need not be shareholders in the Corporation. Except as hereinafter provided in the case of vacancies, directors shall be elected by the shareholders, and each director shall be elected to serve for a term of not more than one year but shall continue to serve until such director’s successor is elected and qualified, subject to such director’s earlier death, resignation or removal.
Section 2. Vacancies. A resignation from the Board of Directors shall be deemed to take effect upon its receipt by the Secretary, unless some other time is specified therein. A vacancy in the Board, including a vacancy created by an increase in the number of directors, may be filled by a majority vote of the remaining directors, though less than a majority of the whole Board, until the election of new directors by the shareholders is held. In the event of a vacancy in the Board of Directors for any reason, a special meeting of the shareholders may be called in accordance with Article I hereof for the purpose of electing a replacement. The new Board of Directors shall serve until the next annual election of directors and until their successors are elected and qualified.
Section 3. Duties of Directors. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by these Regulations directed or required to be exercised and done by the shareholders.
Section 4. First Meeting of New Board. The first meeting of each newly elected Board may be held at such time and place as shall be fixed by the shareholders at the meeting at which such directors were elected, and no notice shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a majority of the whole Board shall be present; or it may convene at such time and place as may be fixed by the consent in writing of all the directors.
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Section 5. Meetings of the Board. Meetings of the Board may be called by the Chairman of the Board, President or any Vice President on at least two (2) days’ written notice to each director, either personally or by fax, E-mail, mail or by telegram. Meetings the Board also shall be called by the President or Secretary in like manner and on like notice on the written request of any two directors if there are three (3) or more directors holding a position on the Board or, on the written request of any single director if there are less than three (3) directors holding a position on the Board. Meetings may be held at such times and places as may be designated in the notices of their call, or they may be held at any time or place, without notice, by the presence of all directors.
Section 6. Notice of Meetings. Written notice of each meeting, stating the date, the time and the place, shall be given to each director at least two (2) days before such meeting, either by fax, E-mail, personally or by mail or telegram.
Section 7. Ratification; Action Without Meeting. The directors, acting at a meeting at which a quorum is present, may ratify any act of any officer or officers of the Corporation. If all the directors shall severally or collectively consent in writing to any action to be taken by the Board, such action shall be as valid a corporate action as though it had been authorized at a meeting of the Board.
Section 8. Quorum. At all meetings of the Board of Directors, a majority of the directors in office shall be necessary to constitute a quorum for the transaction of business, and the acts of a majority of the directors present at a meeting at which a quorum is present shall be the acts of the Board, Directors who have a personal or financial interest in a contract or transaction which is before the Board, or who are common directors of the Corporation and another corporation with respect to which a contract or transaction is before the Board, may be counted in determining the presence of a quorum at a meeting of the directors, or a committee thereof, which authorizes the contract or transaction. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement of the meeting, until a quorum shall be present.
Section 9. Executive Committee. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more of its number to constitute an Executive Committee which, to the extent provided in such resolution, shall have and exercise the authority of the Board in the management of the business of the Corporation. Vacancies in the membership of the Executive Committee shall be filled by the Board of Directors. The Executive Committee shall keep regular minutes of its proceedings and report the same to the Board when required.
Section 10. Other Committees. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more of its number, or other individuals, to constitute any other committee which shall have and exercise the authority granted to it by the Board in the management of the business of the Corporation. Vacancies in the membership of a committee shall be filled by the Board of Directors. Each committee shall keep regular minutes of its proceedings and report the same to the Board when required.
Section 11. Compensation of Directors. Unless otherwise determined by the shareholders, directors shall not be entitled to receive a fee for their services.
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Section 12. Telephonic Meetings. To the extent permitted by law, members of the Board of Directors or any committee thereof may participate in a meeting of such body through the use of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this section shall constitute presence in person at such meeting.
ARTICLE III
OFFICERS
Section 1. Election of Executive Officers. The Board of Directors shall elect a President, a Secretary, and a Treasurer and such other officers as the Board may from time to time deem necessary. The Board of Directors may elect a Chairman of the Board. The Chairman of the Board shall be, but the other executive officers need not be, chosen from among the members of the Board of Directors. Any two or more of such executive offices may be held by the same person, but no executive officer shall execute, acknowledge or verify any instrument in more than one capacity. Other officers may be appointed in the manner provided for in these Regulations.
Section 2. Term and Removal. The officers of the Corporation shall hold office until their successors are chosen, or until any such officer has resigned or is removed. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause whenever in its judgment the best interests of the Corporation will be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the shareholders and Board of Directors and shall have the authority to call meetings of the shareholders and the Board of Directors and of any standing or special committee appointed by or upon authority of the Board of Directors. The Chairman of the Board shall see that all orders and resolutions of the Board and shareholders are carried into effect.
Section 4. President. In the absence or disability of the Chairman of the Board, the President shall preside at meetings of the shareholders and the Board of Directors. The President shall have authority to call meetings of the shareholders and the Board of Directors and of any standing or special committee appointed by or upon authority of the Board of Directors. The President shall have responsibility for the general management and direction of the business and affairs of the Corporation, subject to the control of the Board of Directors and shall have such other duties as may, from time to time, be assigned by the Board of Directors.
Section 5. Vice Presidents. The Vice President, if any, or if there be more than one, the Vice Presidents, shall assist in the management of the business of the Corporation and the implementation of resolutions and orders of the Board of Directors. If there be more than one Vice President, the Board of Directors may designate one or more of them as Executive Vice President or Senior Vice President among the Vice Presidents and may also grant to such officers and other Vice Presidents such titles as shall be descriptive of their respective functions or indicative of their relative seniority. The Vice President or, if there be more than one, the Vice Presidents, shall have such other powers and duties as, from time to time, may be prescribed by the Board of Directors or the President.
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Section 6. Secretary and Assistant Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the shareholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose. The Secretary shall have custody of the corporate seal and the Secretary, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and, when so affixed, it may be attested by the Secretary’s signature or by the signature of such Assistant Secretary. The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors. The Secretary and Assistant Secretary shall perform such other duties as shall from time to time be imposed upon him or her by the Board of Directors or the President.
The Assistant Secretary or, if there be more than one, the Assistant Secretaries, in the order of their election shall, in the absence of or disability of the Secretary or in the event of the Secretary’s inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors or the President may from time to time prescribe.
Section 7. Treasurer and Assistant Treasurer. The Treasurer shall have the custody of the corporate funds and secretaries and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as shall be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Board of Directors, whenever they may require, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall-perform such other duties as shall from time to time be imposed upon him by the Board of Directors or President.
The Assistant Treasurer or, if there shall be more than one, the Assistant Treasurers in the order of their election shall, in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such duties and have such oilier powers as the Board of Directors or the President may from time to time prescribe.
ARTICLE IV
INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 1. In case any person was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the Corporation, by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, member, manager, employee, or agent of another corporation, domestic or foreign. nonprofit or For profit,
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partnership, limited liability company, joint venture, trust, or other enterprise, the Corporation shall (to the extent authorized under Section 4 of this Article IV) indemnify such person against expenses, including attorneys’ fees, judgments, decrees, fines, penalties, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any matter the subject of a criminal action, suit, or proceeding, he had no reasonable cause to believe that his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, itself, create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and with respect to any matter the subject of a criminal action, suit or proceeding, that he had reasonable cause to believe that his conduct was unlawful.
Section 2. In case any person was or is a party, or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, member, manager, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, limited liability company, joint venture, trust or other enterprise, the Corporation shall (to the extent authorized under Section 4 of this Article IV) indemnify such person against expenses, including attorney’s fees, actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any of the following: (i) any claim, issue, or matter as to which such person is adjudged to be liable for misconduct in the performance of his duty to the Corporation unless and only to the extent that the court of common pleas, or the court in which such action or suit was brought, determines upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court of common pleas or such other court shall deem proper; or (ii) any action or suit in which the only liability assented against a director is pursuant to Section 1701.95 of the Ohio Revised Code.
Section 3. To the extent that a director, trustee, officer, employee, or agent has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in Sections 1 and 2 of this Article IV, or in defense of any claim, issue, or matte· therein, the Corporation shall indemnify him against expenses, including attorney’s fees, actually and reasonably incurred by him in connection with the action, suit or proceeding.
Section 4. Any indemnification under Sections l and 2 of this Article IV, unless ordered by a court, shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, trustee, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 1 and 2 of this Article IV. Such determination shall be made as follows: (i) by a majority vote of a quorum consisting of directors of the Corporation who were not and are not parties to or threatened with any such action, suit, or proceeding, (ii) if the quorum described in
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clause (i) of this Section 4 is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel other than an attorney, or a firm having associated with it any attorney, who has been retained by or who has performed services for the Corporation, or any person to be indemnified within the past five (5) years, (iii) by the shareholders, or (iv) by the court of common pleas or the court in which such action, suit, or proceeding was brought. Any determination made by the disinterested directors under clause (i) of this Section 4 or by independent legal counsel under clause (ii) or this Section 4 shall be promptly communicated to the person who threatened or brought the action or suit, by or in the right of the Corporation referred to in Section 2 of this Article IV, and within ten (10) days after the receipt of such notification, such person shall have the right to petition the court of common pleas or the court in which such action or suit was brought to review the reasonableness of such determination.
Section 5.
(a) Unless the only liability asserted against a director in an action, suit, or proceeding referred to in Sections 1 and 2 of this Article IV is pursuant to Section 1701.95 of the Ohio Revised Code, expenses, including attorneys’ fees, incurred by a director in defending the action, suit, or proceeding, shall be paid by the Corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which he agrees to do both of the following: (A) repay such amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Corporation or undertaken with reckless disregard for the best interests of the Corporation; and (B) reasonably cooperate with the Corporation concerning the action, suit or proceeding.
(b) Expenses, including attorneys’ fees, incurred by a director, trustee, officer, employee or agent in defending any action, suit or proceeding referred to in Sections I and 2 of this Article IV may be paid by the Corporation as they are incurred in advance of the final disposition of the action, suit or proceeding as authorized by the directors in the specific case, upon the receipt of an undertaking or on behalf of the director, trustee, officer, employee or agent to repay such amount, if it ultimately is determined that he is not entitled to be indemnified by the Corporation.
Section 6. Expenses, including attorneys’ fees, amounts paid in settlement, and (except in the case of an action by or in the right of the Corporation) judgments, decrees, fines and penalties, incurred in connection with any potential, threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by any person by reason of the fact that he is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, trustee, officer, member. manager, employee, or agent of another corporation, domestic or foreign, nonprofit or profit, partnership, limited liability company, joint venture, trust or other enterprise, may be paid or reimbursed by the Corporation, as authorized by the Board of Directors upon a determination that such payment or reimbursement is in the best interests of the Corporation; provided, however, that, unless all directors are interested, the interested directors shall not participate and a quorum shall be one-third of the disinterested directors.
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Section 7. The indemnification authorized by this Article IV shall not be exclusive of, and shall be in addition to, any other rights granted lo those seeking indemnification under the Articles of Incorporation or these Regulations or any agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person.
Section 8. The Corporation may purchase and maintain insurance or furnish similar protection, including, but not limited to, trust funds, letters of credit or self-insurance, on behalf of or for any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, trustee, officer, member, manager, employee, or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, limited liability company, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have indemnified him against such liability under this Article IV. Insurance may be purchased from or maintained with a person in which the Corporation has a financial interest.
Section 9. The authority of the Corporation to indemnify persons pursuant to Sections I and 2 of this Article IV does not limit the payment of expenses as they are incurred, indemnification, insurance, or other protection that may be provided pursuant to Sections 5, 6, 7 and 8 of this Article IV. Sections 1 and 2 of this Article IV do not create any obligation to repay or return payments made by the Corporation pursuant to Sections 5, 6, 7 and 8 of this Article IV.
Section 10. As used in Article IV, references to the Corporation include all constituent corporations in a consolidation or merger and the new or surviving corporation, so that any person who is 01· was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such a constituent corporation as a director, trustee, officer, member, manager, employee or agent of another corporation, domestic or foreign, nonprofit or for profit, partnership, limited liability company, joint venture, trust, or other enterprise, shall stand in the same position under this Article IV with respect to the new or surviving corporation as he would if he had served the new or surviving corporation in the same capacity. As used in Article IV, words of the masculine gender shall include the feminine gender.
ARTICLE V
CERTIFICATES FOR SHARES
Section 1. Issuance. The certificates for shares of the Corporation shall be numbered and registered in a share register as they are issue d. They shall exhibit the name of the registered holder and the number and class of shares, and the series, if any, represented thereby and the par value of each share or a statement that such shares are without par value, as the case may be. The designations, preferences, voting power, qualifications, privileges, limitations, and any special rights of the shares of each class to be issued may, but need not, be stated in full or in the form or a summary, either upon the face or back of the certificate. Every share certificate shall be signed by the President or a Vice President, and the Secretary or an Assistant Secretary or the Treasurer
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or an Assistant Treasurer, but where such certificate is signed by a registrar or transfer agent, the signature of any corporate officer upon such certificate may be a facsimile, engraved or printed. In case any officer who has signed or whose facsimile signature has been placed upon any share Certificate shall have ceased to be such officer because of death, resignation or otherwise before the certificate is issued, it may be issued by the Corporation with the same effect as if the officer had not ceased to be such prior to its issuance.
Section 2. Transfers of Shares. The Board of Directors may from time to time appoint such transfer agents or registrars of shares as it may deem advisable, and may define their powers and duties. Upon surrender to the Corporation, or its transfer agent, of a share certificate duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate or certificates shall be issued in accordance with the directions therein contained and the old certificate shall be cancelled and the transaction shall be recorded upon the books of the Corporation.
Section 3. Fixing Record Date. The Board of Directors may fix a time, not more than sixty (60) days nor less than ten (10) days prior to the date of any meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of and to vote at any such meeting, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect to any such change, conversion or exchange of shares. In such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting, or to receive payment of such dividend or distribution, or to receive such allotment frights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after any record date so fixed. The Board of Directors may close the books of the Corporation against transfers of shares during the whole or any part of the period following the record date, and in such ease written or printed notice thereof shall be mailed at least ten (10) days before the closing thereof to each shareholder of record at the address appearing on the records of the Corporation or supplied by him or her to the Corporation for the purpose of notice.
Section 4. Registered Shareholders. The Corporation shall be entitled to treat the holder of record of any share or shares as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, and shall not be liable for any registration or transfer of shares which are registered or to be registered in the name of a fiduciary, or the nominee or a fiduciary, unless made with actual knowledge that a fiduciary or nominee of a fiduciary is committing a breach of trust in requesting such registration or transfer, or with knowledge of such facts that its participation therein amounts to bad faith.
Section 5. Lost Certificate. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation and alleged to have been lost or destroyed, upon receiving an affidavit of that fact made by the person claiming that the share certificate has been lost or destroyed. When authorizing such issuance of a new certificate or certificates, the Board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate or certificates alleged to have been lost or destroyed.
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ARTICLE VI
DIVIDENDS
Dividends upon the capital stock of the Corporation, subject to the provisions of the Articles of Incorporation relating thereto, if any, may be declared by the Board of Directors at any regular or special meeting pursuant to law. Dividends may be paid in cash, in property or in shares of the Corporation.
ARTICLE VII
MISCELLANEOUS
Section 1. Checks and Notes. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or agent or agents as the Board of Directors may from time to time designate. The signature of any officer or agent upon any of the foregoing instruments may be a facsimile when authorized by the Board of Directors.
Section 2. Seal. The Board of Directors may, but need not, provide a suitable seal, containing the name of the Corporation, to be kept by the Secretary. If deemed advisable by the Board of Directors, duplicate seals may be kept and used by other officers of the Corporation, or by any transfer agent of its shares.
Section 3. Notices. Whenever, under the provisions of the statutes or of the Articles of Incorporation, or of these Regulations, notice is required to be given to any person, it may be given to such person by fax, E-mail with electronic confirmation of receipt, by personal service or by sending a copy thereof through the mail or by telegram or similar method, charges prepaid, to his or her address appearing on the books of the Corporation or supplied by him or her to the Corporation for the purpose of notice. If the notice is sent by mail or by telegram, it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a telegraph office for transmission to such person.
Section 4. Waiver of Notice. Any notice required to be given lo any person may be waived in writing signed by the person entitled to such notice whether before or after the holding of the meeting, the notice of which is thereby waived. Attendance of any person entitled to notice, either in person or by proxy, at any meeting shall constitute a waiver of notice of such meeting by such person except where such person attends a meeting for the express purpose of objecting to the transaction of any business because the meeting was not lawfully called or convened.
Section 5. Emergency Regulations. The directors may, without further shareholder approval, adopt such emergency regulations as they may deem necessary or proper, to be operative only during any emergency for corporations, when and as proclaimed by the Governor of Ohio or any other person lawfully exercising the power and discharging the duties of the office of governor.
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Section 6. Manner of Amendment. These Regulations may be altered, amended or repealed by the affirmative vote of a majority of the shares entitled to vote thereon at any meeting duly convened after notice to the shareholders of that purpose; or without a meeting by the written assent of the holders of record of shares of the Corporation entitling them to exercise a majority of the voting power on such proposal.
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Exhibit 3.7
File Copy
CERTIFICATE OF INCORPORATION
OF A
PRIVATE LIMITED COMPANY
Company Number 9257343
The Registrar of Companies for England and Wales, hereby certifies that
SOLAR NEW HOLDCO LIMITED
is this day incorporated under the Companies Act 2006 as a private company, that the company is limited by shares, and the situation of its registered office is in England and Wales
Given at Companies House, Cardiff, on 9th October 2014
The above information was communicated by electronic means and authenticated by the Registrar of Companies under section 1115 of the Companies Act 2006
FILE COPY
CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
Company Number 9257343
The Registrar of Companies for England and Wales hereby certifies that under the Companies Act 2006:
SOLAR NEW HOLDCO LIMITED
a company incorporated as private limited by shares; having its registered office situated in England and Wales; has changed its name to:
NEW STERIS LIMITED
Given at Companies House on 24th November 2014
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FILE COPY
CERTIFICATE OF INCORPORATION
ON CHANGE OF NAME
AND RE-REGISTRATION OF A PRIVATE COMPANY
AS A PUBLIC COMPANY
Company No. 9257343
The Registrar of Companies for England/Wales hereby certifies that
NEW STERIS LIMITED
formerly registered as a private company having changed its name and having this day been re-registered under the Companies Act 2006 as a public company is now incorporated under the name of
STERIS PLC
and that the company is limited by shares.
Its registered office is situated in England/Wales.
Given at Companies House on 2nd November 2015
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FILE COPY
CERTIFICATE OF INCORPORATION
ON RE-REGISTRATION OF A PUBLIC COMPANY
AS A PRIVATE COMPANY AND REGISTRATION
OF ORDER OF COURT AND
STATEMENT OF CAPITAL
Company No. 9257343
The Registrar of Companies for England/Wales hereby certifies that
STERIS PLC
formerly registered as a public company has this day been re-registered under the Companies Act 2006 as a private company, is now incorporated under the name of
STERIS LIMITED
and that the company is limited by shares. Its registered office is situated in England/Wales.
And having by Special Resolution reduced its capital as confirmed by an Order of the Court dated the 26th March 2019
The said Order and statement approved by the Court were registered pursuant to section 649 of the Companies Act 2006, on 28th March 2019 Given at Companies House on 28th March 2019
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COMPANY HAVING A SHARE CAPITAL
Memorandum of Association of SOLAR NEW HOLDCO LIMITED
Each subscriber to this memorandum of association wishes to form a company under the Companies Act 2006 and agrees to become a member of the company and to take at least one share.
Method of authentication: Electronic
Name of subscriber(s)
STERIS CORPORATION
Dated: 09 October 2014
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Exhibit 3.8
STERIS LIMITED
ARTICLES OF ASSOCIATION
TABLE OF CONTENTS
| Page | ||||||
| PRELIMINARY |
1 | |||||
| 1. |
DEFINITIONS | 1 | ||||
| 2. |
EXCLUSION OF MODEL ARTICLES | 5 | ||||
| CAPITAL |
5 | |||||
| 3. |
LIABILITY OF MEMBERS | 5 | ||||
| 4. |
SHARE CAPITAL | 5 | ||||
| 5. |
ORDINARY SHARES | 5 | ||||
| 6. |
PREFERENCE SHARES | 6 | ||||
| 7. |
SECTION 551 AUTHORITY | 6 | ||||
| 8. |
SECTION 561 DISAPPLICATION | 6 | ||||
| 9. |
ALLOTMENT AFTER EXPIRY | 7 | ||||
| 10. |
DEFINITIONS FOR ARTICLES 5, 8 AND 9 | 7 | ||||
| 11. |
ALLOTMENT POWERS—SECTION 551 AUTHORITY | 7 | ||||
| 12. |
ALLOTMENT POWERS—SECTION 561 AUTHORITY | 8 | ||||
| 13. |
RESIDUAL ALLOTMENT POWERS | 8 | ||||
| POWERS OF ALLOTMENT |
9 | |||||
| 14. |
CIRCUMSTANCES WHERE BOARD MAY ALLOT SHARES | 9 | ||||
| 15. |
COMMISSIONS AND BROKERAGE | 11 | ||||
| 16. |
TRUSTS NOT RECOGNISED | 11 | ||||
| 17. |
PURCHASE OF OWN SHARES | 12 | ||||
| 18. |
VARIATION OF CLASS RIGHTS | 12 | ||||
| ALTERATION OF SHARE CAPITAL |
12 | |||||
| 19. |
INCREASE, CONSOLIDATION, SUB-DIVISION AND CANCELLATION | 12 | ||||
| 20. |
FRACTIONS | 13 | ||||
| 21. |
REDUCTION OF SHARE CAPITAL | 13 | ||||
| CERTIFICATED SHARES |
14 | |||||
| 22. |
RIGHT TO CERTIFICATES | 14 | ||||
| 23. |
REPLACEMENT CERTIFICATES | 14 | ||||
| UNCERTIFICATED SHARES |
15 | |||||
| 24. |
UNCERTIFICATED SHARES | 15 | ||||
| LIEN ON SHARES |
16 | |||||
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TABLE OF CONTENTS
(continued)
| Page | ||||||
| 25. |
COMPANY’S LIEN ON SHARES NOT FULLY PAID | 16 | ||||
| 26. |
ENFORCEMENT OF LIEN BY SALE | 17 | ||||
| 27. |
APPLICATION OF SALE PROCEEDS | 17 | ||||
| CALLS |
18 | |||||
| 28. |
CALLS | 18 | ||||
| 29. |
LIABILITY OF JOINT HOLDERS | 18 | ||||
| 30. |
INTEREST | 18 | ||||
| 31. |
DIFFERENTIATION | 18 | ||||
| 32. |
PAYMENT IN ADVANCE OF CALLS | 18 | ||||
| 33. |
RESTRICTIONS IF CALLS UNPAID | 19 | ||||
| 34. |
SUMS DUE ON ALLOTMENT TREATED AS CALLS | 19 | ||||
| FORFEITURE |
19 | |||||
| 35. |
FORFEITURE AFTER NOTICE OF UNPAID CALL | 19 | ||||
| 36. |
NOTICE AFTER FORFEITURE | 19 | ||||
| 37. |
CONSEQUENCES OF FORFEITURE | 20 | ||||
| 38. |
DISPOSAL OF FORFEITED SHARE | 20 | ||||
| 39. |
PROOF OF FORFEITURE | 21 | ||||
| UNTRACED MEMBERS |
21 | |||||
| 40. |
SALE OF SHARES | 21 | ||||
| 41. |
APPLICATION OF SALE PROCEEDS | 22 | ||||
| TRANSFER OF SHARES |
23 | |||||
| 42. |
FORM OF TRANSFER | 23 | ||||
| 43. |
REGISTRATION OF A CERTIFICATED SHARE TRANSFER | 23 | ||||
| 44. |
REGISTRATION OF AN UNCERTIFICATED SHARE TRANSFER | 24 | ||||
| 45. |
NO FEE ON REGISTRATION | 24 | ||||
| 46. |
CLOSING OF REGISTER OF MEMBERS | 25 | ||||
| EXERCISE OF MEMBERS’ RIGHTS |
25 | |||||
| 47. |
NOMINATION OF PERSONS TO ENJOY MEMBERS’ RIGHTS | 25 | ||||
| TRANSMISSION OF SHARES |
25 | |||||
| 48. |
ON DEATH | 25 | ||||
| 49. |
ELECTION OF PERSON ENTITLED BY TRANSMISSION | 25 | ||||
-ii-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 50. |
RIGHTS ON TRANSMISSION | 26 | ||||
| GENERAL MEETINGS |
26 | |||||
| 51. |
ANNUAL AND OTHER GENERAL MEETINGS | 26 | ||||
| 52. |
NOTICE OF GENERAL MEETINGS | 27 | ||||
| 53. |
QUORUM FOR GENERAL MEETING | 28 | ||||
| 54. |
PROCEDURE IF QUORUM NOT PRESENT | 28 | ||||
| 55. |
CHAIRMAN OF GENERAL MEETING | 29 | ||||
| 56. |
RIGHTS OF DIRECTORS AND OTHERS TO ATTEND MEETINGS | 29 | ||||
| 57. |
ACCOMMODATION OF MEMBERS AT MEETING | 29 | ||||
| 58. |
SECURITY | 29 | ||||
| 59. |
POWER TO ADJOURN | 29 | ||||
| 60. |
NOTICE OF ADJOURNED MEETING | 30 | ||||
| 61. |
BUSINESS OF ADJOURNED MEETING | 30 | ||||
| 62. |
PROPOSED SHAREHOLDER RESOLUTIONS | 30 | ||||
| 63. |
TIME FOR RECEIVING REQUESTS | 34 | ||||
| VOTING |
35 | |||||
| 64. |
VOTING AT A GENERAL MEETING | 35 | ||||
| 65. |
POLL PROCEDURE | 35 | ||||
| 66. |
VOTES OF MEMBERS | 36 | ||||
| 67. |
CHAIRMAN’S CASTING VOTE | 36 | ||||
| 68. |
VOTING RESTRICTIONS ON AN OUTSTANDING CALL | 36 | ||||
| 69. |
PROXY INSTRUMENT | 37 | ||||
| 70. |
CORPORATE REPRESENTATIVES | 38 | ||||
| 71. |
AMENDMENT TO RESOLUTIONS | 39 | ||||
| 72. |
OBJECTION TO ERROR IN VOTING | 39 | ||||
| FAILURE TO DISCLOSE INTERESTS IN SHARES |
39 | |||||
| 73. |
FAILURE TO DISCLOSE INTERESTS IN SHARES | 39 | ||||
| APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS |
43 | |||||
| 74. |
NUMBER OF DIRECTORS | 43 | ||||
| 75. |
NO SHARE QUALIFICATION | 43 | ||||
| 76. |
COMPANY’S POWER TO APPOINT DIRECTORS | 43 | ||||
-iii-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 77. |
BOARD’S POWER TO APPOINT DIRECTORS | 43 | ||||
| 78. |
APPOINTMENT OF EXECUTIVE DIRECTORS | 43 | ||||
| 79. |
ANNUAL RE-ELECTION | 44 | ||||
| 80. |
ELIGIBILITY OF NEW DIRECTORS | 44 | ||||
| 81. |
REMOVAL BY ORDINARY RESOLUTION | 44 | ||||
| 82. |
VACATION OF DIRECTOR’S OFFICE | 45 | ||||
| BOARD POWERS |
45 | |||||
| 83. |
BOARD POWERS | 45 | ||||
| 84. |
DIRECTORS BELOW THE MINIMUM NUMBER | 46 | ||||
| 85. |
DELEGATION TO EXECUTIVE DIRECTORS | 46 | ||||
| 86. |
DELEGATION TO COMMITTEES | 46 | ||||
| 87. |
LOCAL MANAGEMENT | 47 | ||||
| 88. |
DELEGATION TO AGENTS | 47 | ||||
| 89. |
EXERCISE OF VOTING POWER | 47 | ||||
| 90. |
PROVISION FOR EMPLOYEES | 47 | ||||
| 91. |
OVERSEAS REGISTERS | 47 | ||||
| 92. |
ASSOCIATE DIRECTORS | 48 | ||||
| 93. |
BORROWING POWERS | 48 | ||||
| 94. |
CHANGE OF COMPANY NAME | 48 | ||||
| DIRECTORS’ REMUNERATION, EXPENSES AND BENEFITS |
48 | |||||
| 95. |
FEES | 48 | ||||
| 96. |
EXPENSES | 48 | ||||
| 97. |
REMUNERATION OF EXECUTIVE DIRECTORS | 49 | ||||
| 98. |
SPECIAL REMUNERATION | 49 | ||||
| 99. |
PENSIONS AND OTHER BENEFITS | 49 | ||||
| DIRECTORS’ PROCEEDINGS |
49 | |||||
| 100. |
BOARD MEETINGS | 49 | ||||
| 101. |
NOTICE OF BOARD MEETINGS | 49 | ||||
| 102. |
QUORUM | 50 | ||||
| 103. |
BOARD CHAIRMAN | 50 | ||||
| 104. |
VOTING | 50 | ||||
-iv-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 105. |
TELEPHONE PARTICIPATION | 50 | ||||
| 106. |
WRITTEN RESOLUTIONS | 51 | ||||
| 107. |
COMMITTEE PROCEEDINGS | 51 | ||||
| 108. |
MINUTES | 51 | ||||
| 109. |
VALIDITY OF PROCEEDINGS | 52 | ||||
| INTERESTS OF DIRECTORS |
52 | |||||
| 110. |
CONTRACTING WITH THE COMPANY | 52 | ||||
| 111. |
DECLARATION OF INTERESTS | 52 | ||||
| 112. |
AUTHORISATION OF BOARD OF CONFLICTS OF INTERESTS | 53 | ||||
| 113. |
PROHIBITION ON VOTING BY INTERESTED DIRECTORS | 54 | ||||
| 114. |
ABILITY OF INTERESTED DIRECTORS TO VOTE | 54 | ||||
| 115. |
DIVISION OF PROPOSALS | 55 | ||||
| 116. |
RULINGS ON QUESTIONS OF ENTITLEMENT TO VOTE | 55 | ||||
| 117. |
INTERESTS OF CONNECTED PERSONS | 55 | ||||
| 118. |
REMUNERATION FOR PROFESSIONAL SERVICES | 55 | ||||
| 119. |
DIRECTORSHIPS OF OTHER COMPANIES | 55 | ||||
| SECRETARY |
56 | |||||
| 120. |
SECRETARY | 56 | ||||
| SEALS AND DOCUMENT AUTHENTICATION |
56 | |||||
| 121. |
APPLICATION OF SEAL | 56 | ||||
| 122. |
OFFICIAL SEAL FOR USE ABROAD | 56 | ||||
| 123. |
DIRECTORS OR SECRETARY TO AUTHENTICATE OR CERTIFY | 57 | ||||
| DIVIDENDS AND OTHER PAYMENTS |
57 | |||||
| 124. |
DECLARATION | 57 | ||||
| 125. |
INTERIM DIVIDENDS | 57 | ||||
| 126. |
ENTITLEMENT TO DIVIDENDS | 57 | ||||
| 127. |
PAYMENT METHODS | 58 | ||||
| 128. |
DEDUCTIONS | 59 | ||||
| 129. |
INTEREST | 59 | ||||
| 130. |
UNCLAIMED DIVIDENDS | 59 | ||||
| 131. |
UNCASHED DIVIDENDS | 60 | ||||
-v-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 132. |
DIVIDENDS IN KIND | 60 | ||||
| 133. |
SCRIP DIVIDENDS | 60 | ||||
| 134. |
RESERVES | 62 | ||||
| 135. |
CAPITALISATION OF PROFITS AND RESERVES | 63 | ||||
| RECORD DATES |
65 | |||||
| 136. |
BOARD TO FIX DATE | 65 | ||||
| ACCOUNTS |
65 | |||||
| 137. |
ACCESS TO ACCOUNTING RECORDS | 65 | ||||
| 138. |
DISTRIBUTION OF ANNUAL ACCOUNTS | 65 | ||||
| COMMUNICATIONS |
67 | |||||
| 139. |
COMMUNICATIONS | 67 | ||||
| 140. |
COMMUNICATIONS TO THE COMPANY | 67 | ||||
| 141. |
COMMUNICATIONS BY THE COMPANY OR THE BOARD IN HARD COPY FORM | 67 | ||||
| 142. |
COMMUNICATIONS BY THE COMPANY IN ELECTRONIC FORM | 68 | ||||
| 143. |
COMMUNICATIONS BY THE COMPANY BY MEANS OF A WEBSITE | 68 | ||||
| 144. |
COMMUNICATIONS BY OTHER MEANS | 69 | ||||
| 145. |
FAILURE TO DELIVER BY ELECTRONIC MEANS | 70 | ||||
| 146. |
WHEN SERVICE IS EFFECTED ON A MEMBER | 70 | ||||
| 147. |
NOTICE BY ADVERTISEMENT | 70 | ||||
| 148. |
DOCUMENTS AND INFORMATION TO JOINT HOLDERS | 71 | ||||
| 149. |
SERVICE OF DOCUMENTS AND INFORMATION ON PERSONS ENTITLED TO SHARES BY TRANSMISSION | 71 | ||||
| 150. |
MEMBERS NOT ENTITLED TO NOTICES, DOCUMENTS AND INFORMATION | 72 | ||||
| 151. |
DOCUMENT DESTRUCTION | 72 | ||||
| MISCELLANEOUS |
73 | |||||
| 152. |
INDEMNITY AND INSURANCE | 73 | ||||
| 153. |
PURCHASE OF INSURANCE | 74 | ||||
| 154. |
BUSINESS COMBINATIONS | 74 | ||||
| 155. |
MANDATORY OFFER PROVISIONS | 75 | ||||
| 156. |
APPLICATION OF CERTAIN ARTICLES | 79 | ||||
-vi-
TABLE OF CONTENTS
(continued)
| Page | ||||||
| 157. |
DISPUTE RESOLUTION | 79 | ||||
| 158. |
DEPOSITARY INTERESTS | 79 | ||||
| 159. |
SCHEME OF ARRANGEMENT | 80 | ||||
-vii-
Company number: 09257343
THE COMPANIES ACT 2006
PRIVATE COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
of
STERIS LIMITED
PRELIMINARY
| 1. | DEFINITIONS |
| 1.1 | In these Articles (unless the context requires otherwise) the following words have the following meanings: |
“2006 Act” means the Companies Act 2006 (including any statutory modification or re-enactment of it for the time being in force);
“acting in concert” has the meaning given to it in the Takeover Code;
“Articles” means these articles of association as altered from time to time by special resolution;
“Auditors” means the auditors of the Company;
“beneficial ownership” of any person or group of affiliated or associated persons shall have the meaning given to such term under the United States federal securities laws. including the Exchange Act;
“Board” means the Directors or any of them duly acting as the board of the Company;
“certificated” means in relation to a share in the Company, a share which is recorded in the Register of Members as being held in certificated form;
“clear days” means in relation to the sending of a notice, that period excluding the day when the notice is given or deemed given and the day for which it is given or on which it is to take effect;
“Company” means STERIS Limited, registered in England with number 09257343;
1
“Depositary” means any depositary, clearing agency, custodian, nominee or similar entity appointed under arrangements entered into by the Company or otherwise approved by the Board that holds, or is interested directly or indirectly, including through a nominee, in, shares, or rights or interests in respect thereof, and which issues certificates, instruments, securities or other documents of title, or maintains accounts, evidencing or recording the entitlement of the holders thereof, or account holders, to or to receive such shares, rights or interests (and shall include, where so approved by the Board, the trustees (acting in their capacity as such) of any employees’ share scheme established by the Company);
“Depositary Interest” means any certificate, instrument, security or other document of title issued, or account maintained, by a Depositary to evidence or record the entitlement of the holder, or account holder, to or to receive shares, or rights or interests in respect thereof;
“Director” means a director of the Company;
“document” includes, unless otherwise specified, any document sent or supplied in electronic form;
“electronic form” has the meaning given in section 1168 of the 2006 Act;
“electronic means” has the meaning given to it in section 1168 of the 2006 Act;
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time;
“execution” means any mode of execution (and “executed” shall be construed accordingly);
“Group” means the group comprising the Company and its subsidiaries within the meaning of section 1159 of the 2006 Act for the time being;
“Group Member” means any member of the Group, including the Company;
“hard copy form” or “hard copy” have the meaning given to them in section 1168 of the 2006 Act;
“interest in shares” includes, where the context permits, “interests in securities” as defined in the Takeover Code and, for the avoidance of doubt, includes, without duplication, beneficial ownership and Depository Interests, and “interested in shares” will be construed accordingly;
“holder” means in relation to a share, the member whose name is entered in the Register of Members as the holder of that share;
“member” means a member of the Company;
2
“Operator” means the Operator (as defined in the Uncertificated Securities Regulations) of the Uncertificated System;
“Ordinary Shares” means ordinary shares of 10 pence each in the Company;
“paid or paid up” means paid up or credited as paid up;
“Participating Security” means a share or class of shares or a renounceable right of allotment of a share, title to which is permitted to be transferred by means of an Uncertificated System in accordance with the Uncertificated Securities Regulations;
“Preference Shares” means the non-voting redeemable preference shares of £0.10 each in the Company;
“Register of Members” means the Company’s register of members kept pursuant to the Statutes or, as the case may be, any overseas branch register kept pursuant to these Articles;
“Registered Office” means the registered office for the time being of the Company or in the case of sending or supplying documents or information by electronic means, the address specified by the Board for the purpose of receiving documents or information by electronic means;
“Seal” means the common seal of the Company or any official or securities seal that the Company has or may have as permitted by the Statutes;
“Secretary” means the secretary of the Company or any other person appointed to perform any of the duties of the secretary of the Company including a joint, temporary, assistant or deputy secretary;
“share” means a share in the capital of the Company;
“Statutes” the 2006 Act and every other act of parliament or statutory instrument for the time being in force concerning companies and affecting the Company including any statutory re-enactment or modification of the 2006 Act or any other act or statutory instrument;
“Takeover Code” means the City Code on Takeover and Mergers as promulgated by the Takeover Panel, as amended and/or supplemented from time to time;
“Takeover Panel” means the Panel on Takeovers and Mergers or such other authority designated as the supervisory authority in the United Kingdom to carry out certain regulatory functions in relation to takeovers under the EC Directive on Takeover Bids (2004/25/EC);
“uncertificated” means in relation to a share, a share to which title is recorded in the Register of Members as being held in uncertificated form and title to which may be transferred by means of an Uncertificated System in accordance with the Uncertificated Securities Regulations;
3
“Uncertificated Securities Regulations” means the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755) including any modification thereof;
“Uncertificated System” means the CREST system or any other applicable system which is a “relevant system” for the purpose of the Uncertificated Securities Regulations;
“US$” means the lawful currency of the United States;
“working day” means a day that is not a Saturday, Sunday or public holiday in the United Kingdom or the United States; and
“writing” includes printing, typewriting, lithography, photography and any other mode or modes of presenting or reproducing words in a visible form including communications in an electronic form for the purposes of Part 37 of the 2006 Act.
| 1.2 | In these Articles: |
| (A) | words or expressions which are not defined in paragraph 1.1 of this Article or elsewhere in these Articles have the same meanings (where applicable) as in the Statutes as in force on the date of the adoption of these Articles; |
| (B) | a reference to any Statute or any provision of a Statute includes a reference to any statutory modification or re-enactment of it for the time being in force, as (where applicable) amended or modified or extended by any other Statute or any order, regulation, instrument or other subordinate legislation made under such Statute or statutory provision or under the Statute under which such statutory instrument was made; |
| (C) | words in the singular include the plural and vice versa, words importing any gender include all genders and a reference to a “person” includes any individual, firm, partnership, unincorporated association, company, corporation or other body corporate; |
| (D) | “mental disorder” means mental disorder as defined in section 1 of the Mental Health Act 1983; |
| (E) | a reference to an Uncertificated System is a reference to the Uncertificated System in respect of which the particular share or class of shares or renounceable right of allotment of a share is a Participating Security; |
| (F) | where an ordinary resolution is expressed to be required for any purpose, a special resolution is also effective for such purpose; and |
| (G) | headings do not affect the interpretation of any Article. |
| 1.3 | These Articles shall be governed by and construed in accordance with English law. |
4
| 2. | EXCLUSION OF MODEL ARTICLES |
No regulations or model articles set out in any statute, statutory instrument or other subordinate legislation (including the regulations in the Companies (Model Articles) Regulations 2008 (SI 2008/3229)) shall be applicable as articles of the Company.
CAPITAL
| 3. | LIABILITY OF MEMBERS |
The liability of the members is limited to the amount, if any, unpaid on the shares held by them.
| 4. | SHARE CAPITAL |
| 4.1 | Subject to the provisions of the Statutes and of these Articles, any shares may be issued with such preferential, deferred, qualified or other special rights, privileges or conditions, whether in regard to dividend, voting, return of capital or otherwise, (including, but without prejudice to the generality of the foregoing, and subject to the provisions of the Statutes, shares which are to be redeemed or are liable to be redeemed at the option of the Company or the holders) as the Company may from time to time in general meeting determine or, if the Company does not so determine, as the Board may determine. |
| 4.2 | If two or more persons are registered as joint holders of any share any one of such persons may give effective receipts for any dividends or other monies payable in respect of such share, but such power shall not apply to the legal personal representatives of a deceased member. |
| 4.3 | The Company shall not be bound to register more than four persons as joint holders of any share. |
| 5. | ORDINARY SHARES |
The Ordinary Shares shall entitle the holders thereof to the rights set out below:
| (A) | the directors may declare and pay dividends on the Ordinary Shares in accordance with Article 124 to Article 135; |
| (B) | on a return of capital of the Company on a winding-up or otherwise, any surplus assets of the Company available for distribution shall, after, in the case of a winding up, paying any holders of the Preference Shares in accordance with Article 6(B), be distributed to each holder of an Ordinary Share pro rata to its shareholding; |
| (C) | subject to Article 66, each holder of an Ordinary Share shall have one vote for every Ordinary Share of which it is the holder; and |
| (D) | Ordinary Shares are freely transferable in accordance with Article 42. |
5
| 6. | PREFERENCE SHARES |
The Preference Shares shall entitle the holders thereof to the rights set out below:
| (A) | the holders of the Preference Shares shall be entitled to receive as set forth herein a fixed cumulative preferential dividend (the “Preference Dividend”) at 5 per cent. per annum on the amount from time to time paid up on the Preference Shares respectively held by them. The Preference Dividend shall be deemed to accrue from day to day commencing on the date of issue of the relevant Preference Shares and shall be paid as and when approved by the Board, or, to the extent unpaid, upon the winding-up of the Company in accordance with sub-paragraph 6(B) below or upon redemption in accordance with sub-paragraph 6(E) below; |
| (B) | on a return of capital of the Company on a winding up, the holders of the Preference Shares shall be entitled to receive out of the assets of the Company available for distribution to its shareholders the sum of £0.10 per Preference Share plus the amount of any then accrued but unpaid Preference Dividend but shall not be entitled to any further participation in the assets of the Company; |
| (C) | the holders of Preference Shares shall have no right to attend, speak or vote, whether in person or by proxy, at any general meeting of the Company or any meeting of a class of members of the Company in respect of the Preference Shares (save where required by law) and shall not be entitled to receive any notice of meetings; |
| (D) | the Preference Shares may not be transferred save with the prior written consent of the Company and in accordance with Article 42; and |
| (E) | subject to the provisions of the 2006 Act and these Articles, the Company may redeem at nominal value, plus the amount of any Preference Dividend then accrued but unpaid in respect of the Preference Shares being redeemed, all or some of the Preference Shares for the time being outstanding and fully paid on or any time after the 8th anniversary of the date of issue of the relevant Preference Shares. |
| 7. | SECTION 551 AUTHORITY |
In addition and without prejudice to the authority granted under Article 11, the Board has general and unconditional authority to exercise all the powers of the Company to allot shares in the Company or to grant rights to subscribe for or to convert any security into shares in the Company up to an aggregate nominal amount equal to the section 551 amount, for each prescribed period.
| 8. | SECTION 561 DISAPPLICATION |
In addition and without prejudice to the authority granted under Article 12, the Board is empowered for each prescribed period to allot equity securities for cash pursuant to the authority conferred by Article 5 as if section 561 of the 2006 Act did not apply to any such allotment, provided that its power shall be limited to the allotment of equity securities up to an aggregate nominal amount equal to the section 561 amount.
6
This Article applies in relation to a sale of shares which is an allotment of equity securities by virtue of section 560(3) of the 2006 Act as if in this Article the words “pursuant to the authority conferred by Article 5” were omitted.
| 9. | ALLOTMENT AFTER EXPIRY |
The Company may make an offer or agreement which would or might require shares to be allotted, or rights to subscribe for or convert any security into shares to be granted, after an authority given pursuant to Article 5 or a power given pursuant to Article 8 has expired. The Board may allot shares, or grant rights to subscribe for or convert any security into shares, in pursuance of that offer or agreement as if the authority or power pursuant to which that offer or agreement was made had not expired.
| 10. | DEFINITIONS FOR ARTICLES 5, 8 AND 9 |
In Articles 5, 8 and 9:
prescribed period means any period for which the authority conferred by Article 5 is given by ordinary or special resolution stating the section 551 amount and/or the power conferred by Article 8 is given by special resolution stating the section 561 amount,
section 551 amount means, for any prescribed period, the amount stated as such in the relevant ordinary or special resolution, and
section 561 amount means, for any prescribed period, the amount stated as such in the relevant special resolution.
| 11. | ALLOTMENT POWERS - SECTION 551 AUTHORITY |
The directors shall be generally and unconditionally authorised pursuant to section 551 of the 2006 Act to:
| (A) | without prejudice to the authority referred to in sub-paragraph 11(B) below, allot shares in the Company, and to grant rights to subscribe for or to convert any security into shares in the Company, up to an aggregate par amount of £17,006,080, for a period expiring (unless previously renewed by the Company in general meeting) on the date which is five years from the date of the adoption of these Articles by the Company, provided that in utilising the authority contained in this sub-paragraph 11(A), the Directors do not exceed the limits provided for in section 312.03(c) (Shareholder Approval) of the NYSE Listed Company Manual; |
| (B) | in addition to the authority referred to in (A) above, allot shares in the Company, and to grant rights to subscribe for or to convert any security into shares in the Company, in connection with a “Rights Plan” as referred to in Article 14, up to an aggregate par amount of £25,509,120, for a period expiring (unless previously renewed by the Company in general meeting) on the date which is five years from the date of the adoption of these Articles by the Company; and |
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| (C) | make an offer or agreement which would or might require shares to be allotted, or rights to subscribe for or convert any security into shares to be granted, after expiry of an authority described in this Article 11 and the directors may allot shares and grant rights in pursuance of that offer or agreement as if this authority had not expired. |
| 12. | ALLOTMENT POWERS - SECTION 561 AUTHORITY |
The directors shall be generally empowered pursuant to section 570 and section 573 of the 2006 Act to allot equity securities (as defined in the 2006 Act) for cash, pursuant to the authorities conferred by Article 11 as if section 561(1) of the 2006 Act did not apply to the allotment. This power:
| (A) | expires (unless previously renewed by the Company in general meeting) on the date which is five years from the date of the adoption of these Articles by the Company, but the Company may make an offer or agreement which would or might require equity securities to be allotted after expiry of this power and the directors may allot equity securities in pursuance of that offer or agreement as if this power had not expired; |
| (B) | shall be limited to the allotment of equity securities: |
| (1) | without prejudice to the authority referred to in sub-paragraph (2) below, up to an aggregate par amount of£ 17,006,080; and |
| (2) | in connection with a “Rights Plan” as referred to in Article 14, up to an aggregate par amount of £25,509,120, in addition to the authority referred to in (1) above. |
This Article applies in relation to a sale of shares which is an allotment of equity securities by virtue of section 560(3) of the 2006 Act as if in the first paragraph of the words “pursuant to the authorities conferred by Article 11” were omitted.
| 13. | RESIDUAL ALLOTMENT POWERS |
Subject to the provisions of the 2006 Act relating to authority, pre-emption rights or otherwise and of any resolution of the Company in general meeting passed pursuant to those provisions, and, in the case of redeemable shares, the provisions of Article 17:
| (A) | all shares for the time being in the capital of the Company shall be at the disposal of the Board; and |
| (B) | the Board may reclassify, allot (with or without conferring a right of renunciation), grant options over, or otherwise dispose of them to such persons on such terms and conditions and at such times as it thinks fit. |
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POWERS OF ALLOTMENT
| 14. | CIRCUMSTANCES WHERE BOARD MAY ALLOT SHARES |
| 14.1 | Subject to the provisions of the 2006 Act, the Board may exercise any power of the Company to establish a shareholders rights plan (the “Rights Plan”) including approving the execution of any document relating to the adoption and/or implementation of the Rights Plan. The Rights Plan may be in such form as the Board shall in its absolute discretion decide and may in particular (but without restriction or limitation) include such terms as are described in the Summary of Example Terms in the form appearing in the Appendix to these Articles. |
| 14.2 | Subject to the provisions of the 2006 Act, the Board may exercise any power of the Company to grant rights (including approving the execution of any documents relating to the grant of rights) (a) to subscribe for shares of the Company and/or (b) to acquire Depositary Interests issued by the Depositary (to whom the Company would issue new shares in connection therewith), in each case in accordance with the Rights Plan (the “Rights”). |
| 14.3 | The purposes for which the Board shall be entitled to establish the Rights Plan and to grant Rights in accordance therewith, as provided in Articles 14.1 and 14.2 above, shall include (without limitation) the following where, in the opinion of the majority of the Board members present at a duly convened meeting of the Board, acting in good faith and on such grounds as the Board shall consider reasonable, irrespective of whether such grounds would be considered reasonable by any other party with or without the benefit of hindsight, to do so would improve the likelihood that: |
| (A) | any process which may result in an acquisition or change of Control of the Company is conducted in an orderly manner; |
| (B) | all members of the Company will be treated equally and fairly and in a similar manner; |
| (C) | an optimum price for shares (or Depositary Interests) would be received by or on behalf of all members of the Company (or holders of Depositary Interests); |
| (D) | the Board would have additional time to gather relevant information or pursue appropriate strategies; |
| (E) | the success of the Company would be promoted for the benefit of its members as a whole; |
| (F) | the long term interests of the Company, its members and its business would be safeguarded; and/or |
| (G) | the Company would not suffer serious economic harm. |
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| 14.4 | Subject to the provisions of the 2006 Act, the Board may determine not to redeem the Rights and accordingly exercise any power of the Company to (a) allot shares of the Company pursuant to the exercise of the Rights or (b) exchange or cause to be exchanged all or part of the Rights (in each case other than Rights held by an Acquiring Person) for Ordinary Shares and/or Depositary Interests and/or another class or series of shares (an “Exchange”) in each case in accordance with the Rights Plan. The purposes for which the Board shall be entitled not to redeem the Rights, and accordingly to exercise any power of the Company to allot shares of the Company or effect an Exchange, shall include (without limitation) the following where, in the opinion of the majority of the Board members present at a duly convened meeting of the Board, acting in good faith and on such grounds as the Board shall consider reasonable, irrespective of whether such grounds would be considered reasonable by any other party with or without the benefit of hindsight, not to redeem the Rights and accordingly to exercise any power of the Company to effect an Exchange or to allot shares in the Company, would improve the likelihood that: |
| (A) | the use of abusive tactics by any person in connection with any potential acquisition or change of Control of the Company would be prevented; |
| (B) | any potential acquisition or change of Control of the Company which would be unlikely to treat all members of the Company equally and fairly and in a similar manner would be prevented; |
| (C) | any potential acquisition or change of Control of the Company at a price which would undervalue the Company or its shares (or Depositary Interests) would be prevented; |
| (D) | any potential acquisition or change of Control of the Company which would be likely to harm the prospects of the success of the Company for the benefit of its members as a whole, having had regard to the matters in section 172 of the 2006 Act, will be prevented; |
| (E) | the long term interests of the Company and/or, its members and its business would be safeguarded; and/or |
| (F) | the Company would not suffer serious economic harm. |
| 14.5 | For the purposes of this Article 14 a person (an “Acquiring Person”) shall be deemed to have control (“Control”) of the Company if he, either alone or with any group of affiliated or associated persons and/or with anyone with whom he is acting in concert, exercises, or is able to exercise or is entitled to acquire, the direct or indirect power to direct or cause the direction of the management and policies of the Company, whether through the ownership of voting securities, by contract or otherwise, and in particular, but without prejudice to the generality of the preceding words, if he, either alone or with any group of affiliated or associated persons, and/or with anyone with whom he is acting in concert, possesses or is entitled to acquire: |
| (A) | interests in shares carrying 20 per cent or more of the voting rights attributable to the capital of the Company which are exercisable at a general meeting; or |
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| (B) | such percentage of the issued share capital of the Company as would, if the whole of the income or assets of the Company were in fact distributed among the members (without regard to any rights which he or any other person has as a loan creditor) entitle him to receive 20 per cent or more of the income or assets so distributed; or |
| (C) | such rights as would, in the event of the winding-up of the Company or in any other circumstances, entitle him to receive 20 per cent or more of the assets of the Company which would then be available for distribution among the members. |
| 14.6 | For the purposes of this Article 14: |
| (A) | “person” shall include any individual, firm, body corporate, unincorporated association, government, state or agency of state, association, joint venture or partnership, in each case whether or not having a separate legal personality and “group of affiliated or associated persons” shall have the meaning given to such terms under the United States federal securities laws, including the Securities Exchange Act of 1934, as amended from time to time; |
| (B) | a person shall be treated as entitled to acquire anything which he is entitled to acquire at a future date, or will at a future date be entitled to acquire, irrespective of whether such future acquisition is contingent upon satisfaction of any conditions precedent; |
| (C) | there shall be attributed to any person (other than a Depositary) any rights or powers which another person possesses on his behalf or may be required to exercise at his discretion or on his behalf (including rights or powers of a nominee possessed or exercisable by the nominee on behalf of such person). |
| 15. | COMMISSIONS AND BROKERAGE |
The Company may exercise all powers conferred by the Statutes of paying commissions or brokerage in relation to a subscription for shares or other allotment. Subject to the Statutes, such commissions or brokerage may be satisfied in cash or by the allotment of fully or partly paid shares or partly in one way and partly in the other.
| 16. | TRUSTS NOT RECOGNISED |
Except as otherwise expressly provided by these Articles or as required by law or as ordered by a court of competent jurisdiction, no person shall be recognised by the Company as holding any share on any trust, and the Company shall not be bound by or required to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any right whatsoever in respect of any share or any interest in any fractional part of a share other than an absolute right to the entirety thereof in the registered holder.
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| 17. | PURCHASE OF OWN SHARES |
Subject to the Statutes and to any rights attached to any shares, the Company may purchase, or enter into a contract under which it will or may purchase, any of its own shares of any class (including any redeemable shares) in any way. Any shares to be so purchased may be selected for purchase on any basis and in any manner whatsoever.
| 18. | VARIATION OF CLASS RIGHTS |
| 18.1 | Subject to the provisions of the 2006 Acts, the rights attached to a class of shares may only be varied: |
| (A) | with the consent in writing from the holders of at least three-quarters in nominal value of the issued shares of that class (excluding any shares held as treasury shares); or |
| (B) | with the sanction of a special resolution passed at a separate general meeting of the holders of that class sanctioning the variation. |
| 18.2 | Subject to the terms of issue of or rights attached to any shares, the rights or privileges attached to any class of shares shall be deemed not to be varied or abrogated by: |
| (A) | the creation or issue of any new shares ranking pari passu in all respects (save as to the date from which such new shares shall rank for dividend) with or subsequent to those already issued; or |
| (B) | the reduction of the capital paid up on such shares or by the purchase or redemption by the Company of any of its own shares in accordance with the Statutes and these Articles. |
ALTERATION OF SHARE CAPITAL
| 19. | INCREASE, CONSOLIDATION, SUB-DIVISION AND CANCELLATION |
The Company may:
| (A) | increase its share capital by allotting new shares in accordance with the 2006 Act and the Articles; |
| (B) | subject to the provisions of the 2006 Act, by ordinary resolution consolidate and divide all or any of its share capital into shares of a larger amount than its existing shares; or |
| (C) | subject to the provisions of the 2006 Act, by ordinary resolution sub-divide all or any of its shares into shares of a smaller amount than its existing shares. |
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| 20. | FRACTIONS |
| 20.1 | If, as the result of a consolidation and division or a sub-division of shares, fractions of shares become attributable to members, the Board may on behalf of the members deal with the fractions as it thinks fit, including (without limitation) in either of the ways prescribed in this Article below. |
| 20.2 | The Board may sell shares representing the fractions to any person (including, subject to the Statutes, the Company) for the best price reasonably obtainable and distribute the net proceeds of sale in due proportion amongst the persons to whom such fractions are attributable (except that if the amount due to a person is less than £5.00, or such other sum as the Board may decide, the Company may retain such sum for its own benefit). To give effect to such sale the Board may: |
| (A) | in the case of certificated shares, authorise a person to execute an instrument of transfer of shares to the purchaser or as the purchaser may direct; and |
| (B) | in the case of uncertificated shares, exercise any power conferred on it by Article 24.9 (uncertificated shares) to effect a transfer of the shares. |
| 20.3 | The purchaser will not be bound to see to the application of the purchase monies in respect of any such sale. The title of the transferee to the shares will not be affected by any irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to at paragraph 20.2 of this Article shall be effective as if it had been executed or exercised by the holder of the shares to which it relates. |
| 20.4 | In relation to such fractions, the Board may issue, subject to the Statutes, to a member credited as fully paid by way of capitalisation the minimum number of shares required to round up his holding of shares to a number which, following a consolidation and division or a sub-division, leaves a whole number of shares (such issue being deemed to have been effected immediately before the consolidation or the sub-division, as the case may be). The amount required to pay up those shares may be capitalised as the Board thinks fit out of amounts standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, and applied in paying up in full the appropriate number of shares. A resolution of the Board capitalising part of any such reserve or fund will have the same effect as if the capitalisation had been made with the sanction of an ordinary resolution of the Company pursuant to Article 135 (capitalisation of profits and reserves). In relation to the capitalisation the Board may exercise all the powers conferred on it by Article 135 without the sanction of an ordinary resolution of the Company. |
| 21. | REDUCTION OF SHARE CAPITAL |
Subject to the Statutes and to any rights attached to any shares, the Company may by special resolution reduce its share capital or any capital redemption reserve, share premium account or other undistributable reserve in any way.
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CERTIFICATED SHARES
| 22. | RIGHT TO CERTIFICATES |
| 22.1 | Subject to the Statutes, the requirements of (to the extent applicable) the rules of any investment exchange to which the shares are admitted to trading, and these Articles, every person (except any person in respect of whom the Company is not required by the Statutes to complete and have ready for delivery a share certificate), upon becoming the holder of a certificated share is entitled, without charge, to receive within one month after allotment or within one month of lodgement of a transfer (unless the conditions of issue provide for a longer interval), one certificate for all the certificated shares of a class registered in his name or, in the case of certificated shares of more than one class being registered in his name, to a separate certificate for each class of shares, unless the terms of issue of the shares provide otherwise. |
| 22.2 | Where a member transfers part of his shares comprised in a certificate, the old certificate shall be cancelled and he shall be entitled, without charge, to one certificate for the balance of the certificated shares retained by him. |
| 22.3 | If and so long as all the issued shares in the capital of the Company or all the issued shares of a particular class are fully paid up and rank pari passu for all purposes, then none of those shares shall bear a distinguishing number. In all other cases each share shall bear a distinguishing number. |
| 22.4 | In the case of joint holders of shares held in certificated form the Company shall not be bound to issue more than one certificate to all the joint holders, and delivery of such certificate to any one of them shall be sufficient delivery to all. |
| 22.5 | A certificate shall specify the number and class and the distinguishing numbers (if any) of the shares in respect of which it is issued and the amount paid up on the shares. It shall be issued under the Seal, which may be affixed to or printed on it, or in such other manner as the Board may approve, having regard to the terms of issue and the requirements of (to the extent applicable) the rules of any investment exchange to which the shares are admitted to trading (including by way of signature or facsimile of the signature of any person to be applied to such share certificate by any mechanical or electronic means in place of that person’s actual signature). |
| 23. | REPLACEMENT CERTIFICATES |
If any certificate is worn-out, defaced, lost or destroyed, the Company may cancel it and issue a replacement certificate subject to such terms as the Board may decide as to evidence and indemnity (with or without security) and to payment of any exceptional out-of-pocket expenses of the Company in investigating such evidence and preparing such indemnity or such security but otherwise free of charge, and (if the certificate is worn-out or defaced) on delivery up of the old certificate.
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UNCERTIFICATED SHARES
| 24. | UNCERTIFICATED SHARES |
| 24.1 | The Board may resolve that a class of shares is to become, or is to cease to be, a Participating Security. |
| 24.2 | Shares of a class shall not be treated as forming a separate class from other shares of the same class as a consequence of such shares being held in certificated or uncertificated form or of any provision in these Articles or the Uncertificated Securities Regulations applying only to certificated shares or to uncertificated shares. |
| 24.3 | Any share of a class which is a Participating Security may be changed from an uncertificated share to a certificated share and from a certificated share to an uncertificated share in accordance with the Uncertificated Securities Regulations. |
| 24.4 | These Articles apply to uncertificated shares of a class which is a Participating Security only to the extent that these Articles are consistent with the holding of such shares in uncertificated form, with the transfer of title to such shares by means of the Uncertificated System and with the Uncertificated Securities Regulations. |
| 24.5 | The Board may lay down regulations not included in these Articles which (in addition to or in substitution for any provisions in these Articles): |
| (A) | apply to the issue, holding or transfer of uncertificated shares; |
| (B) | set out (where appropriate) the procedures for conversion and/or redemption of uncertificated shares; and/or |
| (C) | the Board considers necessary or appropriate to ensure that these Articles are consistent with the Uncertificated Securities Regulations and/or the Operator’s rules and practices. |
| 24.6 | Such regulations will apply instead of any relevant provisions in these Articles which relate to certificates and the transfer, conversion and redemption of shares or which are not consistent with the Uncertificated Securities Regulations, in all cases to the extent (if any) stated in such regulations. If the Board makes any such regulations, paragraph 24.4 of this Article will (for the avoidance of doubt) continue to apply to these Articles, when read in conjunction with those regulations. |
| 24.7 | Any instruction given by means of an Uncertificated System as referred to in these Articles shall be a dematerialised instruction given in accordance with the Uncertificated Securities Regulations, the facilities and requirements of the Uncertificated System and the Operator’s rules and practices. |
| 24.8 | For any purpose under these Articles, the Company may treat a member’s holding of uncertificated shares and of certificated shares of the same class as if they were separate holdings, unless the Board otherwise decides. |
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| 24.9 | Where the Company is entitled under the Statutes, the Operator’s rules and practices, these Articles or otherwise to dispose of, forfeit, enforce a lien over or impose a restriction on or sell or otherwise procure the sale of any shares of a class which is a Participating Security which are held in uncertificated form, the Board may take such steps (subject to the Uncertificated Securities Regulations and to such rules and practices) as may be required or appropriate, by instruction by means of the Uncertificated System or otherwise, to effect such disposal, forfeiture, enforcement or sale including by (without limitation): |
| (A) | requesting or requiring the deletion of any computer-based entries in the Uncertificated System relating to the holding of such shares in uncertificated form; |
| (B) | altering such computer-based entries so as to divest the holder of such shares of the power to transfer such shares other than to a person selected or approved by the Company for the purpose of such transfer; |
| (C) | requiring any holder of such shares, by notice in writing to him, to change his holding of such uncertificated shares into certificated form within any specified period; |
| (D) | requiring any holder of such shares to take such steps as may be necessary to sell or transfer such shares as directed by the Company; |
| (E) | otherwise rectify or change the Register of Members in respect of any such shares in such manner as the Board considers appropriate (including, without limitation, by entering the name of a transferee into the Register of Members as the next holder of such shares); and/or |
| (F) | appointing any person to take any steps in the name of any holder of such shares as may be required to change such shares from uncertificated form to certificated form and/or to effect the transfer of such shares (and such steps shall be effective as if they had been taken by such holder). |
| 24.10 | The Company shall enter on the Register of Members how many shares are held by each member in uncertificated form and in certificated form and shall maintain the register in each case as is required by the Uncertificated Securities Regulations and the relevant system concerned. |
| 24.11 | The provisions of Articles 22 and 23 shall not apply to uncertificated shares. |
LIEN ON SHARES
| 25. | COMPANY’S LIEN ON SHARES NOT FULLY PAID |
| 25.1 | The Company has a first and paramount lien on each issued share (not being a fully paid share) to the extent and in the circumstances permitted by section 670 of the 2006 Act. The Company’s lien (if any) on a share shall extend to all amounts payable to the Company (whether actually or contingently and whether presently payable or not) in respect of such share. |
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| 25.2 | The lien applies to all dividends on any such share and to all amounts payable by the Company in respect of such share. It also applies notwithstanding that: |
| (A) | the Company may have notice of any equitable or other interest of any person in any such share; or |
| (B) | any such amounts payable may be the joint debts and liabilities of both the holder of the share and one or more other persons. |
| 25.3 | The Board may resolve that any share be exempt wholly or in part from this Article. |
| 26. | ENFORCEMENT OF LIEN BY SALE |
| 26.1 | For the purpose of enforcing the Company’s lien on any shares, the Board may sell them in such manner as it decides if an amount in respect of which the lien exists is presently payable and is not paid within fourteen (14) clear days following the giving of a notice to the holder (or any person entitled by transmission to the share) demanding payment of the amount due within such fourteen clear day period and stating that if the notice is not complied with the shares may be sold. |
| 26.2 | To give effect to such sale the Board may: |
| (A) | in the case of certificated shares, authorise a person to execute an instrument of transfer of shares in the name and on behalf of the holder of, or the person entitled by transmission to, them to the purchaser or as the purchaser may direct; and |
| (B) | in the case of uncertificated shares, exercise any power conferred on it by Article 24.9 (uncertificated shares) to effect a transfer of the shares. |
| 26.3 | The purchaser will not be bound to see to the application of the purchase monies in respect of any such sale. The title of the transferee to the shares will not be affected by any irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to at paragraph 26.2 of this Article shall be effective as if it had been executed or exercised by the holder of, or the person entitled by transmission to, the shares to which it relates. |
| 27. | APPLICATION OF SALE PROCEEDS |
The net proceeds of any sale of shares subject to the Company’s lien under these Articles (after payment of the costs and expenses of sale) shall be applied in or towards satisfaction of the amount then due to the Company in respect of the shares. Any balance shall be paid to the original holder of, or the person entitled (but for such sale) by transmission to, the shares on (in the case of certificated shares) surrender to the Company for cancellation of the certificate for such shares and (in all cases) subject to the Company having a lien on such balance on the same basis as applied to such shares for any amount not presently payable as existed on such shares before the sale.
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CALLS
| 28. | CALLS |
| 28.1 | Subject to the terms on which shares are allotted, the Board may make calls on the members (and any persons entitled by transmission) in respect of any amounts unpaid on their shares (whether in respect of nominal value or premium) and not payable on a date fixed by or in accordance with the allotment terms. Each such member or other person shall pay to the Company the amount called, subject to receiving at least fourteen (14) clear days’ notice specifying when and where the payment is to be made, as required by such notice. |
| 28.2 | A call may be made payable by instalments. A call shall be deemed to have been made when the resolution of the Board authorising it is passed. A call may, before the Company’s receipt of any amount due under it, be revoked or postponed in whole or in part as the Board may decide. A person upon whom a call is made will remain liable for calls made on him notwithstanding the subsequent transfer of the shares in respect of which the call was made. |
| 29. | LIABILITY OF JOINT HOLDERS |
The joint holders of a share shall be jointly and severally liable to pay all calls in respect of it.
| 30. | INTEREST |
If the whole of the sum payable in respect of any call is not paid by the day it becomes due and payable, the person from whom it is due shall pay all costs, charges and expenses that the Company may have incurred by reason of such non-payment, together with interest on the unpaid amount from the day it became due and payable until it is paid at the rate fixed by the terms of the allotment of the share or in the notice of the call or, if no rate is fixed, at such rate, not exceeding twenty (20) per cent per annum (compounded on a six monthly basis), as the Board shall determine. The Board may waive payment of such costs, charges, expenses or interest in whole or in part.
| 31. | DIFFERENTIATION |
Subject to the allotment terms, the Board may make arrangements on or before the issue of shares to differentiate between the holders of shares in the amounts and times of payment of calls on their shares.
| 32. | PAYMENT IN ADVANCE OF CALLS |
| 32.1 | The Board may, if it thinks fit, receive from any member (or any person entitled by transmission) all or any part of the amount uncalled and unpaid on the shares held by him (or to which he is entitled). The liability of each such member or other person on the shares to which such payment relates shall be reduced by such amount. The Company may pay interest on such amount from the time of receipt until the time when such amount would, but for such advance, have become due and payable at such rate not exceeding twenty (20) per cent per annum (compounded on a six monthly basis) as the Board may decide. |
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| 32.2 | No sum paid up on a share in advance of a call shall entitle the holder to any portion of a dividend subsequently declared or paid in respect of any period prior to the date on which such sum would, but for such payment, become due and payable. |
| 33. | RESTRICTIONS IF CALLS UNPAID |
Unless the Board decides otherwise, no member shall be entitled to receive any dividend or to be present or vote at any meeting or to exercise any right or privilege as a member until he has paid all calls due and payable on every share held by him, whether alone or jointly with any other person, together with interest and expenses (if any) to the Company.
| 34. | SUMS DUE ON ALLOTMENT TREATED AS CALLS |
Any sum payable in respect of a share on allotment or at any fixed date, whether in respect of the nominal value of the share or by way of premium or as an instalment of a call, shall be deemed to be a call. If such sum is not paid, these Articles shall apply as if it had become due and payable by virtue of a call.
FORFEITURE
| 35. | FORFEITURE AFTER NOTICE OF UNPAID CALL |
| 35.1 | If a call or an instalment of a call remains unpaid after it has become due and payable, the Board may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued and any costs, charges and expenses that the Company may have incurred by reason of such non-payment. The notice shall state the place where payment is to be made and that if the notice is not complied with the shares in respect of which the call was made will be liable to be forfeited. If the notice is not complied with, any shares in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Board. The forfeiture will include all dividends and other amounts payable in respect of the forfeited shares which have not been paid before the forfeiture. |
| 35.2 | The Board may accept the surrender of a share which is liable to be forfeited in accordance with these Articles. All provisions in these Articles which apply to the forfeiture of a share also apply to the surrender of a share. |
| 36. | NOTICE AFTER FORFEITURE |
| 36.1 | When a share has been forfeited, the Company shall give notice of the forfeiture to the person who was before forfeiture the holder of the share or the person entitled by transmission to the share. An entry that such notice has been given and of the fact and date of forfeiture shall be made in the Register of Members. No forfeiture will be invalidated by any omission to give such notice or make such entry. |
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| 36.2 | The Board may accept a surrender of any share liable to be forfeited hereunder. |
| 37. | CONSEQUENCES OF FORFEITURE |
| 37.1 | Subject to the provisions of the 2006 Act, a share shall, on its forfeiture, become the property of the Company and all interest in and all claims and demands against the Company in respect of a share and all other rights and liabilities incidental to the share as between its holder and the Company shall, on its forfeiture, be extinguished and terminate except as otherwise stated in these Articles. |
| 37.2 | The holder of a share (or the person entitled to it by transmission) which is forfeited or surrendered shall: |
| (A) | on its forfeiture or surrender cease to be a member (or a person entitled) in respect of it; |
| (B) | if a certificated share, surrender to the Company for cancellation the certificate for the share; |
| (C) | remain liable to pay to the Company all monies payable in respect of the share at the time of forfeiture, with interest from such time of forfeiture until the time of payment, in the same manner in all respects as if the share had not been forfeited; and |
| (D) | remain liable to satisfy all (if any) claims and demands which the Company might have enforced in respect of the share at the time of forfeiture without any deduction or allowance for the value of the share at the time of forfeiture or for any consideration received on its disposal. |
| 37.3 | The forfeiture or surrender of a share shall involve the extinction at the time of forfeiture or surrender of all interest in and all claims and demands against the Company in respect of the share as between the shareholder whose share is forfeited or surrendered and the Company, except only such of those rights and liabilities as are by these Articles expressly saved, or as are by the 2006 Act given or imposed in the case of past members. |
| 37.4 | Notwithstanding any such forfeiture as aforesaid, the Board may, at any time before the forfeited shares have been otherwise disposed of, annul the forfeiture, on the terms of payment of all calls and interest due thereon and all expenses incurred in respect of the share, or on the terms of compliance with the terms of any notice served under section 793 of the 2006 Act, as appropriate, and on such further terms (if any) as it shall see fit. |
| 38. | DISPOSAL OF FORFEITED SHARE |
| 38.1 | Subject to the 2006 Act, a forfeited share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Board may decide either to the person who was before the forfeiture the holder or to any other person. At any time before the disposal, the forfeiture may be cancelled on such terms as the Board may decide. Where for the purpose of its disposal a forfeited share is to be transferred to any transferee, the Board may: |
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| (A) | in the case of certificated shares, authorise a person to execute an instrument of transfer of shares in the name and on behalf of their holder to the purchaser or as the purchaser may direct; and |
| (B) | in the case of uncertificated shares, exercise any power conferred on it by Article 24.9 (uncertificated shares) to effect a transfer of the shares. |
| 38.2 | The purchaser will not be bound to see to the application of the purchase monies in respect of any such sale. The title of the transferee to the shares will not be affected by any irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to at paragraph 38.1 of this Article shall be effective as if it had been executed or exercised by the holder of, or the person entitled by transmission to, the shares to which it relates. |
| 39. | PROOF OF FORFEITURE |
A statutory declaration by a Director or the Secretary that a share has been duly forfeited on a specified date shall be conclusive evidence of the facts stated in it against all persons claiming to be entitled to the share. The declaration shall (subject to the execution of any necessary instrument of transfer) constitute good title to the share. The person to whom the share is disposed of shall not be bound to see to the application of the consideration (if any) given for it on such disposal. His title to the share will not be affected by any irregularity in, or invalidity of, the proceedings connected with the forfeiture or disposal.
UNTRACED MEMBERS
| 40. | SALE OF SHARES |
| 40.1 | The Company may sell at the best price reasonably obtainable any share of a member, or any share to which a person is entitled by transmission, if: |
| (A) | during the period of twelve (12) years prior to the date of the publication of the advertisements referred to in this paragraph 40.1 (or, if published on different dates, the earlier or earliest of them): |
| (1) | no cheque, warrant or money order in respect of such share sent by or on behalf of the Company to the member or to the person entitled by transmission to the share, at his address in the Register of Members or other address last known to the Company has been cashed; |
| (2) | no cash dividend payable on the shares has been satisfied by the transfer of funds to a bank account of the member (or person entitled by transmission to the share) or by transfer of funds by means of the Uncertificated System; and |
| (3) | the Company has received no communication (whether in writing or otherwise) in respect of such share from such member or person, |
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provided that during such twelve (12) year period the Company has paid at least three cash dividends (whether interim or final) in respect of shares of the class in question and no such dividend has been claimed by the person entitled to such share;
| (B) | on or after the expiry of such twelve (12) year period the Company has given notice of its intention to sell such share by advertisements in a national newspaper published in the country in which the Registered Office is located and in a newspaper circulating in the area in which the address in the Register of Members or other last known address of the member or the person entitled by transmission to the share or the address for the service of notices on such member or person notified to the Company in accordance with these Articles is located; |
| (C) | such advertisements, if not published on the same day, are published within thirty (30) days of each other; and |
| (D) | during a further period of three months following the date of publication of such advertisements (or, if published on different dates, the date on which the requirements of this paragraph 40.1 concerning the publication of newspaper advertisements are met) and prior to the sale the Company has not received any communication (whether in writing or otherwise) in respect of such share from the member or person entitled by transmission. |
| 40.2 | To give effect to a sale pursuant to paragraph 40.1 of this Article, the Board may: |
| (A) | in the case of certificated shares, authorise a person to execute an instrument of transfer of shares in the name and on behalf of the holder of, or the person entitled by transmission to, them to the purchaser or as the purchaser may direct; and |
| (B) | in the case of uncertificated shares, exercise any power conferred on it by Article 24.9 (uncertificated shares) to effect a transfer of the shares. |
| 40.3 | The transferee will not be bound to see to the application of the purchase monies in respect of any such sale. The title of the transferee to the shares will not be affected by any irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to at paragraph 40.2 of this Article shall be effective as if it had been executed or exercised by the holder of, or the person entitled by transmission to, the shares to which it relates. |
| 41. | APPLICATION OF SALE PROCEEDS |
The Company shall account to the member or other person entitled to such share for the net proceeds of such sale by carrying all monies in respect of the sale to a separate account. The Company shall be deemed to be a debtor to. and not a trustee for, such member or other person in respect of such monies. Monies carried to such separate account may either be employed in the business of the Company or invested as the Board may think fit. No interest shall be payable to such member or other person in respect of such monies and the Company shall not be required to account for any money earned on them.
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TRANSFER OF SHARES
| 42. | FORM OF TRANSFER |
| 42.1 | Subject to these Articles, a member may transfer all or any of his shares: |
| (A) | in the case of certificated shares, by an instrument of transfer in writing in any usual form or in another form approved by the Board, which must be executed by or on behalf of the transferor and (in the case of a transfer of a share which is not fully paid) by or on behalf of the transferee; or |
| (B) | in the case of uncertificated shares, without a written instrument in accordance with the Uncertificated Securities Regulations. |
| 42.2 | The transferor shall remain the holder of the share transferred until the name of the transferee is entered in the Register of Members in respect of it. |
| 42.3 | The Board may at any time after the allotment of any share but before any person has been entered in the Register of Members as the holder thereof recognise a renunciation thereof by the allottee in favour of some other person and may accord to any allottee of a share a right to effect such renunciation upon and subject to such terms and conditions as the Board may think fit to impose. |
| 43. | REGISTRATION OF A CERTIFICATED SHARE TRANSFER |
| 43.1 | Subject to these Articles, the Board may, in its absolute discretion, refuse to register the transfer of a certificated share or the renunciation of a renounceable letter of allotment unless it is: |
| (A) | in respect of a share which is fully paid; |
| (B) | in respect of a share on which the Company has no lien; |
| (C) | in respect of only one class of shares; |
| (D) | in favour of a single transferee or renouncee or not more than four joint transferees or renouncees; |
| (E) | duly stamped (if required); and |
| (F) | delivered for registration to the Registered Office or such other place as the Board may decide, accompanied by the certificate for the shares to which it relates (except in the case of a transfer of a share, for which a certificate has not been issued, by a person in respect of whom the Company is not required by the 2006 Act to complete and have ready for delivery a share certificate, and except in the case of a renunciation) and any other evidence as the Board may reasonably require to prove the title to such share of the transferor or person renouncing and the due execution by him of the transfer or renunciation or, if the transfer or renunciation is executed |
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| by some other person on his behalf. the authority of such person to do so, provided that the Board shall not refuse to register any transfer or renunciation of any certificated shares listed on any investment exchange to which the shares are admitted to trading on the ground that they are partly paid in circumstances where such refusal would prevent dealings in such shares from taking place on an open and proper basis. |
| 43.2 | If the Board refuses to register a transfer or renunciation pursuant to this Article, it shall, within two months after the date on which the transfer or renunciation was delivered to the Company, send notice of the refusal to the transferee or renounce together with their reasons for the refusal. An instrument of transfer or renunciation which the Board refuses to register shall (except in the case of suspected fraud) be returned to the person delivering it. All instruments of transfer which are registered may, subject to these Articles, be retained by the Company. |
| 43.3 | The instrument of transfer of a certificated share shall be signed by or on behalf of the transferor. |
| 43.4 | In the case of a partly paid up share the instrument of transfer must also be signed by or on behalf of the transferee. |
| 43.5 | All instruments of transfer which shall be registered shall (except in case of fraud) be retained by the Company, but any instrument of transfer which the Board may refuse to register shall (except in case of fraud) be returned to the party presenting the same. |
| 44. | REGISTRATION OF AN UNCERTIFICATED SHARE TRANSFER |
| 44.1 | The Board shall register a transfer of title to any uncertificated share or the renunciation or transfer of any renounceable right of allotment of a share which is a Participating Security held in uncertificated form in accordance with the Uncertificated Securities Regulations, except that the Board may refuse (subject to any relevant requirements of (to the extent applicable) the rules of any investment exchange to which the shares are admitted to trading) to register any such transfer or renunciation which is in favour of more than four persons jointly or in any other circumstance permitted by the Uncertificated Securities Regulations. |
| 44.2 | If the Board refuses to register any such transfer or renunciation the Company shall, within two months after the date on which the instruction relating to such transfer or renunciation was received by the Company, send notice of the refusal to the transferee or renouncee. |
| 45. | NO FEE ON REGISTRATION |
No fee shall be charged for the registration of a transfer of a share or the renunciation of a renounceable letter of allotment or other document relating to or affecting the title to any share.
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| 46. | CLOSING OF REGISTER OF MEMBERS |
The registration of transfers of shares or of any class of shares may be suspended at such times and for such periods, not exceeding thirty (30) days in any year, as the Board may decide (subject to the Uncertificated Securities Regulations in the case of any shares of a class which is a Participating Security).
EXERCISE OF MEMBERS’ RIGHTS
| 47. | NOMINATION OF PERSONS TO ENJOY MEMBERS’ RIGHTS |
| 47.1 | Any member of the Company who is not a holder of Preference Shares may. by giving thirty (30) days’ notice in writing to the Company, nominate another person or persons as being entitled to enjoy or exercise all or any specified rights of the member in relation to the Company. Once such notice has been given, anything required or authorised by any provision of the 2006 Act to be done by or in relation to the member shall instead be done or, (as the case may be) may instead be done, by or in relation to the nominated person (or each of them) as if he were a member of the Company. |
| 47.2 | Article 47.1 above applies in respect of the rights set out in section 145 of the 2006 Act and is subject to section 145(4) of the 2006 Act. |
TRANSMISSION OF SHARES
| 48. | ON DEATH |
If a member dies. the survivors or survivor where he was a joint holder. or his personal representatives where he was the sole or only surviving holder, shall be the only persons recognised by the Company as having any title to his shares. Nothing in these Articles shall release the estate of a deceased holder from any liability in respect of a share which has been held by him solely or jointly.
| 49. | ELECTION OF PERSON ENTITLED BY TRANSMISSION |
| 49.1 | A person becoming entitled to a share in consequence of the death or bankruptcy of a member, or of any other event giving rise to a transmission of such entitlement by operation of law, may, on such evidence as to his title being produced as the Board may require. elect either to become registered as the holder of such share or to have some person nominated by him so registered. If he elects to be registered himself, he shall give notice to the Company to that effect. If he elects to have some other person registered, he shall: |
| (A) | in the case of a certificated share, execute an instrument of transfer of such share to such person; and |
| (B) | in the case of an uncertificated share, either: |
| (1) | procure that all appropriate instructions are given by means of the Uncertificated System to effect the transfer of such share to such person; or |
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| (2) | change the uncertificated share to certificated form and then execute an instrument of transfer of such share to such person. |
| 49.2 | All the provisions of these Articles relating to the transfer of shares shall apply to the notice or instrument of transfer or instructions (as the case may be) referred to at paragraph 49.1 of this Article as if the notice were an instrument of transfer and as if the instrument of transfer was executed, or the instructions were given, by the member and the event giving rise to the transmission had not occurred. |
| 49.3 | The Board may give notice requiring a person to make the election referred to in paragraph 49.1 of this Article. If such notice is not complied with within sixty (60) days, the Board may withhold payment of all dividends and other amounts payable in respect of the share until notice of election has been made. |
| 50. | RIGHTS ON TRANSMISSION |
A person becoming entitled by transmission to a share shall have the rights to which he would be entitled if he were the holder of the share, except that he shall not, before being registered as its holder, be entitled in respect of it to receive notice of, or to attend or vote at, any general meeting or at any separate meeting of the holders of any class of shares.
GENERAL MEETINGS
| 51. | ANNUAL AND OTHER GENERAL MEETINGS |
| 51.1 | The Company shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year. The annual general meeting shall be held in each period of six months beginning with the day following the Company’s accounting reference date and subject thereto at such time and place as the Board shall determine. The first such annual general meeting of the Company will be held in 2016. |
| 51.2 | The Board may convene a general meeting whenever it thinks fit. A general meeting shall, subject as provided in these Articles, also be convened on such requisition, or in default may be convened by such requisitionists, as provided by section 303 of the 2006 Act. In the case of a general meeting called in pursuance of a requisition, no business shall be transacted at such meeting except that stated by the requisition or proposed by the Board. |
| 51.3 | All provisions of these Articles relating to general meetings of the Company shall, mutatis mutandis, apply to every separate general meeting of the holders of any class of shares in the capital of the Company, except that: |
| (A) | the necessary quorum at any such meeting (or adjournment thereof) shall be members of that class who together represent at least the majority of the voting rights of all the members of that class entitled to vote, present in person or by proxy, at the relevant meeting; and |
| (B) | each holder of shares of the class shall, on a poll, have one vote in respect of every share of the class held by him. |
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| 52. | NOTICE OF GENERAL MEETINGS |
| 52.1 | A general meeting that is an annual general meeting shall be convened by not less than twenty-one (21) clear days’ and no more than sixty (60) clear days’ notice. |
| 52.2 | Subject to the provisions of the 2006 Act and these Articles, all general meetings other than annual general meetings shall be convened by not less than fourteen (14) clear days’ and no more than sixty (60) clear days’ notice. |
| 52.3 | Subject to the 2006 Act and notwithstanding that it is convened by shorter notice than that specified in paragraphs 52.1 and 52.2 of this Article, a general meeting shall be deemed to have been duly convened if it is so agreed: |
| (A) | in the case of an annual general meeting, by all the members entitled to attend and vote at the meeting; and |
| (B) | in the case of any other general meeting, by members having a right to attend and vote at the meeting holding in aggregate not less than 95 per cent. in nominal value of the shares giving that right. |
| 52.4 | A notice of meeting shall specify: |
| (A) | whether the meeting is an annual general meeting or any other general meeting; |
| (B) | the place, the day and the time of the meeting; |
| (C) | subject to the requirements of (to the extent applicable) the rules of any investment exchange to which the shares are admitted to trading, the general nature of the business to be transacted; |
| (D) | if the meeting is convened to consider a special resolution, the intention to propose the resolution as such; and |
| (E) | with reasonable prominence, that a member entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of him and that a proxy need not also be a member. |
| 52.5 | The notice of meeting: |
| (A) | shall be given to the members (other than a member who, under these Articles or any restrictions imposed on any shares, is not entitled to receive notice from the Company), the Directors and the Company’s auditors; and |
| (B) | may specify a time by which a person must be entered on the Register of Members in order for such person to have the right to attend or vote at the meeting (subject to the Uncertificated Securities Regulations). |
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| 52.6 | The Board may determine that the members entitled to receive notice of a meeting are those persons entered on the Register of Members at the close of business on a day determined by the Board (subject to the Uncertificated Securities Regulations). |
| 52.7 | The accidental omission to send or give a notice of meeting or, in cases where it is intended that it be sent out or given with the notice, an instrument of proxy or any other document to, or the non-receipt of any such item by, any person entitled to receive such notice shall not invalidate the proceedings at that meeting. |
| 53. | QUORUM FOR GENERAL MEETING |
| 53.1 | No business shall be transacted at a general meeting unless a quorum is present when the meeting proceeds to business. Save as otherwise provided by these Articles, a quorum will comprise qualifying persons. who together are entitled to cast at least the majority of the voting rights of all the members entitled to vote at the relevant meeting, on a poll. For the purposes of this Article 53.1 a proxy, attorney or other representative of a member will be considered to be entitled to cast only the voting rights to which his appointment relates and not any other voting rights held by the member he represents. |
| 53.2 | For the purposes of this Article, a “qualifying person” means (i) an individual who is a member of the Company (other than a member who, under these Articles or any restrictions imposed on any shares, is not entitled to attend, speak or vote, whether in person or by proxy, at any general meeting of the Company) or his validly appointed attorney, (ii) a person authorised under section 323 of the 2006 Act to act as the representative of a corporation in relation to the meeting, or (iii) a person appointed as a proxy of a member in relation to the meeting. The Board is entitled, acting in good faith and without further enquiry, to assume the validity of any votes cast in person or by proxy. |
| 53.3 | The absence of a quorum will not prevent the appointment of a chairman of the meeting. Such appointment shall not be treated as being part of the business of the meeting. |
| 54. | PROCEDURE IF QUORUM NOT PRESENT |
| 54.1 | If within fifteen (15) minutes (or such longer time not exceeding one hour as the chairman of the meeting may decide to wait) after the time appointed for the holding of the meeting a quorum is not present, or if during the meeting a quorum ceases to be present, the meeting: |
| (A) | if convened on the requisition of members, shall be dissolved; and |
| (B) | in any other case, shall stand adjourned to the same day in the next week or to such other day and at such other time and place as the chairman (or, in default, the Board) may, subject to the provisions of the 2006 Act, determine. |
| 54.2 | If at such adjourned meeting a quorum is not present within fifteen (15) minutes after the time appointed for holding it the adjourned meeting shall be dissolved. |
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| 55. | CHAIRMAN OF GENERAL MEETING |
The chairman (if any) of the Board or, in his absence, the vice or deputy chairman (if any) shall preside as chairman at a general meeting. If there is no chairman or vice or deputy chairman, or if at a meeting neither is present within five minutes after the time fixed for the start of the meeting, or neither is willing to act, the Directors present shall select one of their number to be chairman of the meeting. If only one Director is present and willing to act, he shall be chairman of the meeting. In default, the members present in person and entitled to vote shall choose one of their number to be chairman of the meeting.
| 56. | RIGHTS OF DIRECTORS AND OTHERS TO ATTEND MEETINGS |
A Director (and any other person invited by the chairman of the meeting to do so) shall be entitled to attend and speak at a general meeting and at a separate meeting of the holders of any class of shares, whether or not he is a member.
| 57. | ACCOMMODATION OF MEMBERS AT MEETING |
If it appears to the chairman of the meeting that the meeting place specified in the notice convening the meeting is inadequate to accommodate all members entitled and wishing to attend, the meeting will be duly constituted and its proceedings valid if the chairman is satisfied that adequate facilities are available to ensure that a member who is unable to be accommodated is able (whether at the meeting place or elsewhere):
| (A) | to participate in the business for which the meeting has been convened; |
| (B) | to hear and see all persons present who speak (whether by the use of microphones, loud-speakers, audio-visual communications equipment or otherwise); and |
| (C) | to be heard and seen by all other persons present in the same way. |
| 58. | SECURITY |
In addition to any measures which the Board may be required to take due to the location or venue of the meeting, the Board may make any arrangement and impose any restriction it considers appropriate and reasonable in the circumstances to ensure the security of a meeting including, without limitation, the searching of any person attending the meeting and the imposing of restrictions on the items of personal property that may be taken into the meeting place. The Board may refuse entry to, or eject from, a meeting a person who refuses to comply with any such arrangements or restrictions.
| 59. | POWER TO ADJOURN |
| 59.1 | The chairman of the meeting may, with the consent of any meeting at which a quorum is present, and shall, if so directed by the meeting, adjourn the meeting, from time to time (or indefinitely) and from place to place as the chairman shall determine. |
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| 59.2 | Without prejudice to any other power of adjournment which the chairman of the meeting may have under these Articles, at common law or otherwise, the chairman may, without the consent of the meeting, adjourn the meeting from time to time (or indefinitely) and from place to place if he decides that it is necessary or appropriate to do so in order to: |
| (A) | secure the proper and orderly conduct of the meeting; or |
| (B) | give all persons entitled to do so an opportunity of attending the meeting; or |
| (C) | give all persons entitled to do so a reasonable opportunity of speaking and voting at the meeting; or |
| (D) | ensure that the business of the meeting is properly concluded or disposed of, including (without limitation) for the purpose of determining the result of a poll. |
| 59.3 | Without prejudice to the generality of the foregoing, the chairman of the meeting may in such circumstances direct that the meeting be held simultaneously in two or more venues connected for the duration of the meeting by audio or audio visual links or in two or more consecutive sessions with the votes taken being aggregated or that it be adjourned to a later time on the same day or a later date at the same or any other venue. |
| 60. | NOTICE OF ADJOURNED MEETING |
Whenever a meeting is adjourned for fourteen (14) days or more or indefinitely, at least seven clear days’ notice, specifying the place, the day and time of the adjourned meeting and the general nature of the business to be transacted, shall be given in the same manner as in the case of an original meeting. Except in these circumstances, no member shall be entitled to any notice of an adjournment or of the business to be transacted at any adjourned meeting.
| 61. | BUSINESS OF ADJOURNED MEETING |
No business shall be transacted at any adjourned meeting other than the business which might properly have been transacted at the meeting from which the adjournment took place.
| 62. | PROPOSED SHAREHOLDER RESOLUTIONS |
| 62.1 | Any request by a member or members to propose a resolution at a meeting of the Company must, in order for the resolution to be properly moved at a meeting of the Company (i) comply with the requirements of the 2006 Act and the requirements of Article 63 and (ii) contain: |
| (A) | to the extent that the request relates to the nomination of a director, as to each person whom the member(s) propose(s) to nominate for election or re-election as a director: |
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| (1) | all information relating to such person that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act, and the regulations promulgated thereunder, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; |
| (2) | a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the past three years, and any other material relationships, between or among such member(s) and any Member Associated Person (as defined below), on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the member(s) making the nomination and any Member Associated Person were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; |
| (B) | to the extent that that request relates to any business other than the nomination of a director that the member(s) propose(s) to bring before the meeting, a comprehensive description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting, the text of the proposal (including the complete text of any resolution(s) proposed for consideration) and any material interest in such business of such member(s) and any Member Associated Person, individually or in the aggregate, including any anticipated benefit to the member(s) or any Member Associated Person therefrom; |
| (C) | as to the member(s) giving the notice and the Member Associated Person, if any, on whose behalf the nomination or proposal is made: |
| (1) | the name and address of such member(s), as they appear on the Company’s books, and of such Member Associated Persons, if any; |
| (2) | the class and number of shares of the Company which are, directly or indirectly, owned beneficially and of record by such member(s) and such Member Associated Persons, if any; |
| (3) | any “Derivative Instrument” owned beneficially, directly or indirectly, by such member or Member Associated Person(s), being any option, warrant, convertible security, share appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Company or with a value derived in whole or in part from the value of any class or series of shares of the Company, or any derivative or synthetic arrangement having the characteristics of a long position in any class or series of shares of the Company, or any contract, derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that |
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| correspond substantially to the ownership of any class or series of shares of the Company, including due to the fact that the value of such contract, derivative, swap or other transaction or series of transactions is determined by reference to the price, value or volatility of any class or series of shares of the Company, whether or not such instrument, contract or right shall be subject to settlement in the underlying class or series of shares of the Company, through the delivery of cash or other property, or otherwise, and without regard to whether the member(s) and such Member Associated Persons, if any, may have entered into transactions that hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Company; |
| (4) | any proxy, contract, arrangement, understanding, or relationship pursuant to which such member(s) and such Member Associated Persons, if any, have the right to vote any class or series of shares of the Company; |
| (5) | any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock borrowing” agreement or arrangement, involving such member(s) and such Member Associated Persons, if any, directly or indirectly, the purpose or effect of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of any class or series of the shares of the Company by, manage the risk of share price changes for, or increase or decrease the voting power of, such member(s), and such Member Associated Persons, if any, with respect to any class or series of the shares of the Company, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of any class or series of the shares of the Company (any of the foregoing, a “Short Interest”); |
| (6) | any rights to dividends on the shares of the Company owned beneficially by such member(s) and such Member Associated Persons, if any, that are separated or separable from the underlying shares of the Company; |
| (7) | any significant equity interests or any Derivative Instruments or Short Interests in any principal competitor of the Company held by such member(s), and such Member Associated Persons, if any; |
| (8) | any other information relating to such member(s) or such other beneficial owner or Member Associated Person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and |
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| (9) | to the extent known by the member(s) giving the notice, and such Member Associated Persons, if any, the name and address of any other member or, as the case may be, the Member Associated Person of such other member, supporting the nominee for election or re-election as a director or the proposal of other business on the date of such request; and |
| (D) | the information required in Article (C) above shall be updated by such member(s) as of the record date for the meeting not later than three days after the record date for the meeting. |
| 62.2 | To be eligible to be a nominee of any member(s) for election or re-election as a director of the Company, save where such election or re-election is at the recommendation of the Board, a person must deliver (in accordance with the time periods prescribed in Article 63.1 for delivery of a request pursuant to Article 62.1) to the secretary at the Registered Office a written questionnaire with respect to the background and qualifications of such individual and the background of any other person or entity on whose behalf, directly or indirectly, the nomination is being made (which questionnaire shall be provided by the secretary upon written request), and a written representation and agreement (in the form provided by the secretary upon written request) that such individual (a) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Company, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed therein, including without limitation any Voting Commitment that could limit or interfere with such individual’s ability to comply, if elected as a director of the Company, with such individual’s fiduciary and other director’s duties under applicable law, (b) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, (c) in such individual’s personal capacity and on behalf of any person or entity on whose behalf, directly or indirectly, the nomination is being made, would be in compliance, if elected as a director of the Company, and will comply, with all applicable corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Company publicly disclosed from time to time and (d) irrevocably submits his or her resignation as a director effective upon a finding by a court of competent jurisdiction that such person has breached such written representation and agreement. |
| 62.3 | Except as otherwise provided by law or the Articles, the chairman of the meeting shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was proposed in accordance with the procedures set out in this Article 62 and in Article 63 and, if any proposed nomination or other business is not in compliance with this Article 62 and Article 63, to declare that such defective proposal or nomination shall be disregarded. |
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| 62.4 | For the purposes of this Article 62, where nominations of persons for appointment to the board and/or proposals of other business to be considered by the members (as the case may be) are made by or on behalf of more than one member or Member Associated Person, references to a member or Member Associated Person m relation to notice and other information requirements shall apply to each member or Member Associated Person, respectively, as the context requires. |
| 62.5 | For the purposes of this Article 62, a “Member Associated Person” of any member shall mean (i) any person controlling, directly or indirectly, or acting in concert with, such member, (ii) any beneficial owner of shares of the Company owned of record or beneficially by such member or in which such member is interested or in respect of which such member has the ability to direct votes, and (iii) any person controlling, controlled by or under common control with a person of the kind referred to in sub-paragraphs (i) or (ii), and for these purposes “control”, when used with respect to any person, means the possession, directly or indirectly, of the power to mange or direct the management, policies or activities of such person, whether through the ownership of voting securities, by contract, or otherwise and “controlling” “controlled by” and “under common control with” shall be construed accordingly. |
| 63. | TIME FOR RECEIVING REQUESTS |
| 63.1 | A member or Member Associated Person who makes a request to which Article 62.1 relates, must deliver any such request in writing to the secretary at the Registered Office not earlier than the close of business on the one hundred and twentieth (120th) calendar day nor later than the close of business on the ninetieth (90th) calendar day prior to the first anniversary of the preceding year’s annual general meeting, provided, however, that if the date of an annual meeting is more than thirty (30) calendar days before or more than sixty (60) calendar days after the first anniversary of the preceding year’s annual general meeting, notice by the member must be so delivered in writing not earlier than the close of business on the one hundred and twentieth (120th) calendar day prior to such annual general meeting and not later than the close of business on the later of (i) the ninetieth (90th) calendar day prior to such annual general meeting and (ii) the fifth (5th) calendar day after the day on which public announcement of the date of such annual general meeting is first made by the Company provided that in no event shall any adjournment or postponement of an annual general meeting or the public announcement thereof commence a new time period for the giving of a member’s notice as described in this Article. |
| 63.2 | For the purposes of the annual general meeting of the Company to be held in 2016, references in this Article 63 to the Company’s “preceding year’s annual general meeting” shall be construed as references to the 2015 annual general meeting of STERIS Corporation. |
| 63.3 | Notwithstanding anything in the foregoing provisions of this Article 63 to the contrary, if the number of directors to be elected to the board is increased and there is no public announcement by the Company naming all of the nominees for director or specifying the size of the increased board of directors made by the Company at least one hundred (I 00) calendar days prior to the date of the first anniversary of the preceding year’s annual general meeting, a member’s notice required by this Article 63 shall also be considered as validly delivered in accordance with Article 63, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secretary at the Company’s registered not later than 5.00 p.m., local time, on the tenth (10th) calendar day after the day on which such public announcement is first made by the Company. |
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| 63.4 | For purposes of this Article 63, “public announcement” shall mean disclosure in a press release reported by Reuters, the Dow Jones News Service, Associated Press or a comparable news service or in a document publicly filed by the Company with the US Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. |
| 63.5 | Notwithstanding the provisions of Article 62 or the foregoing provisions of this Article 63, a member shall also comply with all applicable requirements of the 2006 Act and of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in Article 62 and this Article 63. Nothing in Article 62 or this Article 63 shall be deemed to affect any rights of members to request inclusion of proposals in, nor the right of the Company to omit proposals from, the Company’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act. |
VOTING
| 64. | VOTING AT A GENERAL MEETING |
| 64.1 | A resolution put to the vote of a general meeting shall be decided on a poll. This requirement for poll voting on resolutions at a general meeting of the Company may only be removed, amended or varied by resolution of the members passed unanimously at a general meeting of the Company. |
| 65. | POLL PROCEDURE |
| 65.1 | Each poll shall be conducted in such a manner as the chairman directs. In advance of any meeting, the chairman shall appoint scrutineers or inspectors who need not be members, to act at the meeting. The chairman may appoint one or more persons as alternate scrutineers or inspectors to replace any scrutineer or inspector who fails to act. If no scrutineer or inspector or alternate scrutineer is willing or able to act at a meeting, the chairman shall appoint one or more other persons to act as scruitineers or inspectors at the meeting. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was conducted. |
| 65.2 | Each scrutineer or inspector appointed in accordance with this Article 65 shall, prior to acting, be required to provide an undertaking to the Company, in a form determined by the board, that he or she will execute the duties of a scrutineer or inspector with strict impartiality and according to the best of his or her ability. |
| 65.3 | Any poll conducted on the election of the chairman or on any question of adjournment shall be taken at the meeting and without adjournment. A poll conducted on another question shall be taken at such time and place at the chairman decides, either at once or after an interval or adjournment. |
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| 65.4 | The date and time of the opening and the closing of a poll for each matter upon which the shareholders will vote at a meeting shall be announced at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the scrutineers or inspectors after the closing of the poll unless a court with relevant jurisdiction upon application by a shareholder shall determine otherwise. |
| 65.5 | A member entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way. |
| 66. | VOTES OF MEMBERS |
| 66.1 | Every member (other than a member who, under these Articles or any restrictions imposed on any shares, is not entitled to vote, whether in person or by proxy, at any general meeting of the Company or any meeting of a class of members of the Company) who (being an individual) is present in person or by duly appointed proxy or (being a corporation) is present by duly authorised representative or by duly appointed proxy shall have one vote for every share of which he is the holder. |
| 66.2 | In the case of joint holders, the vote of the senior who tenders a vote shall be accepted to the exclusion of the votes of the other joint holders. Seniority shall be determined by the order in which the names of the holders stand in the Register of Members in respect of the joint holding. |
| 66.3 | A member in respect of whom an order has been made by any court or official having jurisdiction (whether in the United Kingdom, the United States or elsewhere) in matters concerning mental disorder or incapacity may vote by his guardian or other person duly authorised to act on his behalf, who may vote by proxy. Evidence to the satisfaction of the Board of the authority of the person claiming the right to vote shall be deposited at the Registered Office, or at such other place as is specified in accordance with these Articles for the deposit of instruments of proxy, not less than forty eight (48) hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised, and in default the right to vote shall not be exercisable. |
| 67. | CHAIRMAN’S CASTING VOTE |
In the case of an equality of votes, the chairman of the meeting shall be entitled to a further or casting vote in addition to any other vote he may have or be entitled to exercise.
| 68. | VOTING RESTRICTIONS ON AN OUTSTANDING CALL |
Unless the Board decides otherwise, no member shall be entitled to be present or vote at any meeting either personally or by proxy until he has paid all calls due and payable on every share held by him whether alone or jointly with any other person together with interest and expenses (if any) to the Company.
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| 69. | PROXY INSTRUMENT |
| 69.1 | The appointment of a proxy shall be in any usual form or in any other form which the Board may approve and, in the case of an instrument in writing, shall be executed by or on behalf of the appointor but need not be witnessed. In the case of an instrument in writing, a corporation may execute a form of proxy either under its common seal (or in any other manner permitted by law and having the same effect as if executed under seal) or under the hand of a duly authorised officer, attorney or other person. A member may appoint more than one proxy to attend on the same occasion, but only one proxy may be appointed in respect of any one share. The appointment of a proxy shall not preclude a member from attending and voting at the meeting or at any adjournment of it. A form of proxy shall, unless it provides to the contrary, be valid for any adjournment of the meeting to which it relates. |
| 69.2 | The appointment of a proxy and any authority under which it is executed or a copy of the authority certified notarially or in some other way approved by the Board shall: |
| (A) | in the case of an instrument in writing be deposited at the Registered Office or at such other place as is specified in the notice convening the meeting, or in any instrument of proxy sent out by the Company in relation to the meeting, not less than forty eight (48) hours before the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote; |
| (B) | in the case of an appointment contained in a communication by electronic means, where an address has been specified for the purpose of receiving communications by electronic means: |
| (1) | in the notice convening the meeting; or |
| (2) | in any instrument of proxy sent out by the Company in relation to the meeting; or |
| (3) | in any invitation contained in an communication by electronic means to appoint a proxy issued by the Company in relation to the meeting, |
be received at such address not less than forty eight (48) hours before the time for holding the meeting or adjourned meeting at which the person named in the appointment proposes to vote;
| (C) | be deemed to include the right to speak at the meeting and to vote on any amendment of a resolution put to the meeting for which it is given as the proxy thinks fit; and |
| (D) | unless the contrary is stated therein, be valid as well for any adjournment of the meeting as for the meeting to which it relates; |
and an appointment of proxy which is not deposited, delivered or received in a manner so permitted shall be invalid (unless the Board, in its absolute discretion in relation to any such appointment, waives any such requirement and decides to treat such appointment as valid).
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| 69.3 | When two or more valid but differing appointments of proxy are delivered or received in respect of the same share for use at the same meeting and in respect of the same matter, the one which is last validly delivered or received (regardless of its date or of the date of its execution) shall be treated as replacing and revoking the other or others as regards that share. If the Company is unable to determine which appointment was last validly delivered or received, none of them shall be treated as valid in respect of that share. |
| 69.4 | The Board may at the expense of the Company send forms of appointment of proxy to the members by post, by communication by electronic means or otherwise (with or without provision for their return by pre-paid post) for use at any general meeting or at any separate meeting of the holders of any class of shares, either blank or nominating as proxy in the alternative any one or more of the Directors or any other person and worded so as to enable the proxy to vote either for or against or to withhold their vote in respect of the resolutions to be proposed at the meeting at which the proxy is to be used. If for the purpose of any meeting invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the Company’s expense, they shall be issued to all (and not to some only) of the members entitled to be sent notice of the meeting and to vote at it. The accidental omission to send such a form of appointment or to give such an invitation to, or the non-receipt of such form of appointment by, any member entitled to attend and vote at a meeting shall not invalidate the proceedings at that meeting. |
| 69.5 | A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the death or mental disorder of the principal or the revocation of the instrument of proxy, or of the authority under which the instrument of proxy was executed, or the transfer of the share in respect of which the instrument of proxy is given. provided that no intimation in writing of such death, mental disorder, revocation or transfer shall have been received by the Company at the Registered Office, or at such other place as is referred to in Article 69.2, not less than forty eight (48) hours (excluding days which are not working days) before the commencement of the meeting or adjourned meeting at which the instrument of proxy is used. |
| 70. | CORPORATE REPRESENTATIVES |
In accordance with the 2006 Act, any corporation which is a member entitled to attend a meeting of the Company or a meeting of the holders of any class of its shares may, by resolution of its directors or other governing body, authorise such person or persons as it thinks fit to act as its representative or representatives at any such meeting of the Company or at any such meeting of the holders of any class of its shares. Any person so authorised shall be entitled to exercise the same powers on behalf of the corporation (in respect of that part of the corporation’s holdings to which the authority relates) as the corporation could exercise if it were an individual member. The corporation shall for the purposes of these Articles be deemed to be present in person at any such meeting if a person so authorised is present at it. All references in these Articles to attendance and voting in person shall be construed accordingly. A Director, the Secretary or some other person authorised for the purpose by the Secretary may (but is not bound to) require the representative to produce a certified copy of the resolution so authorising him or such other evidence of his authority reasonably satisfactory to such person before permitting him to exercise his powers.
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| 71. | AMENDMENT TO RESOLUTIONS |
| 71.1 | If an amendment shall be proposed to any resolution but shall in good faith be ruled out of order by the chairman of the meeting, any error in such ruling shall not invalidate the proceedings on the substantive resolution. |
| 71.2 | In the case of a resolution duly proposed as a special resolution, no amendment to it (other than an amendment to correct a patent error) may be considered or voted on and in the case of a resolution duly proposed as an ordinary resolution no amendment to it (other than an amendment to correct a patent error) may be considered or voted on unless either at least forty eight (48) hours prior to the time appointed for holding the meeting or adjourned meeting at which such ordinary resolution is to be proposed notice in writing of the terms of the amendment and intention to move it has been lodged at the Registered Office or the chairman of the meeting in his absolute discretion decides that it may be considered or voted on. |
| 72. | OBJECTION TO ERROR IN VOTING |
No objection shall be raised to the qualification of any voter or to the counting of. or failure to count, any vote, except at the meeting or adjourned meeting at which the vote objected to is given or tendered or at which the error occurs. Any such objection or error shall be referred to the chairman of the meeting, who shall not be obliged to take it into account unless he considers it to be of sufficient magnitude to affect the decision of the meeting. The chairman’s decision on such matters shall be final and binding on all concerned.
FAILURE TO DISCLOSE INTERESTS IN SHARES
| 73. | FAILURE TO DISCLOSE INTERESTS IN SHARES |
| 73.1 | For the purpose of this Article: |
| (A) | “Exempt Transfer” means, in relation to shares held by a member: |
| (1) | a transfer pursuant to acceptance of a takeover offer (as defined in section 974 of the 2006 Act) for the Company or in relation to any of its shares; |
| (2) | a transfer in consequence of a sale made through a recognised investment exchange (as defined in section 285 of the Financial Services and Markets Act 2000) or any investment exchange selected by the Company outside the United Kingdom on which the Company’s shares (or rights in respect of those shares) are normally traded; or |
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| (3) | a transfer made in consequence of a sale in good faith of the whole of the beneficial interest in the shares to a bona fide unconnected third party, that is to say one who, in the reasonable opinion of the Board, is unconnected with the member or with any other person appearing to be interested in such shares prior to such transfer (being a party which itself is not the holder of any shares in the Company in respect of which a Direction Notice is then in force or a person appearing to be interested in any such shares) and/or the Board does not have reasonable grounds to believe that the transferor or any other person appearing to be interested in such first mentioned shares will following such transfer have any interest in such shares; |
| (B) | a person shall be treated as appearing to be “interested” in any shares if the member holding such shares has given to the Company information in response to a notice from the Company pursuant to section 793 of the 2006 Act (a “Section 793 Notice”) which names such person as being so interested or if the Company (after taking into account information provided in response to the relevant Section 793 Notice and any other notification under the 2006 Act or any relevant information otherwise available to the Company) knows or has reasonable cause to believe that the person in question is, or may be, interested in the shares, and references in this Article to persons interested in shares and to “interests in shares” shall be construed in accordance with section 820 of the 2006 Act; |
| (C) | a person, other than the member holding a share, shall be treated as appearing to be interested in such share if the member has informed the Company that the person is or may be so interested, or if the Company (after taking account of information obtained from the member or, pursuant to a duly served Section 793 Notice from anyone else) knows or has reasonable cause to believe that the person is or may be so interested; |
| (D) | reference to a person having failed to give to the Company information required by a Section 793 Notice, or being in default of supplying such information, includes references to his having: |
| (1) | failed or refused to give all or any part of such information; and |
| (2) | given information which he knows to be false in a material particular or recklessly given information which is false in a material particular; and |
| (E) | “transfer” means a transfer of a share or (where applicable) a renunciation of a renounceable letter of allotment or other renounceable document of title relating to a share. |
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| 73.2 | Where a Section 793 Notice is given by the Company to a member, or another person appearing to be interested in shares held by such member, and the member or other person has failed in relation to any shares (“Default Shares”) (which expression applies also to any shares issued after the date of the Section 793 Notice in respect of those shares and to any other shares registered in the name of such member at any time whilst the default subsists) to give the Company the information required within the time period specified in such notice, then provided that ten (10) clear days have elapsed since service of the Section 793 Notice, the Board may at any time thereafter at its absolute discretion by notice to such member (a “Direction Notice”) direct that: |
| (A) | the member which is the subject of a Direction Notice is not, in respect of the Default Shares, entitled to be present or to vote (either in person or by proxy) at a general meeting or at a separate meeting of the holders of a class of shares or on a poll, or to exercise other rights conferred by membership in relation to the meeting or poll; |
| (B) | in respect of the Default Shares that represent, at the date of the Direction Notice, 0.25 per cent or more in nominal value of the issued shares of their class: |
| (1) | any dividend (or any part of a dividend) or any monies which would otherwise be payable in respect of the Default Shares (except on a winding up of the Company) may be withheld by the Company, which shall have no obligation to pay interest on such dividend; |
| (2) | the member shall not be entitled to elect, pursuant to Article 133 (scrip dividends) or otherwise, to receive shares instead of a dividend; and |
| (3) | the Board may, in its absolute discretion, refuse to register the transfer of any Default Shares (subject, in the case of any uncertificated shares, to the Uncertificated Securities Regulations) unless: |
| (a) | the transfer is an Exempt Transfer; or |
| (b) | the member is not himself in default in supplying the information required and proves to the satisfaction of the Board that no person in default of supplying the information required is interested in any of the shares which are the subject of the transfer, and |
| (C) | the member which is the subject of a Direction Notice is in breach of these Articles. |
| 73.3 | The Company shall send a copy of the Direction Notice to each other person appearing to be interested in the relevant Default Shares the address of whom has been notified to the Company, but failure or omission by the Company to do so shall not invalidate such notice. |
| 73.4 | Where any person appearing to be interested in any shares has been served with a Section 793 Notice and such shares are held by a Depositary, the provisions of this Article shall be deemed to apply only to those shares held by the Depositary in which such person appears to be interested and not (so far as that person’s apparent interest is concerned) to any other shares held by the Depositary and references to Default Shares shall be construed accordingly. |
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| 73.5 | Where a person who has an interest in Depositary Interests receives a Section 793 Notice, that person is considered for the purposes of this Article 73 to have an interest in the number of shares represented by those Depositary Interests which is specified in the Section 793 Notice and not in the remainder of the shares held by the Depositary or in which the Depositary is otherwise interested. |
| 73.6 | Where the member on whom a Section 793 Notice has been served is a Depositary, the obligations of the Depositary acting in its capacity as such shall be limited to disclosing to the Company such information relating to any person appearing to be interested in the shares held by it as has been recorded by the Depositary in accordance with the arrangements entered into by the Company or approved by the Board pursuant to which it was appointed as a Depositary. |
| 73.7 | The sanctions under paragraph 73.2 of this Article shall cease to apply seven days after the earlier of: |
| (A) | receipt by the Company of notice of an Exempt Transfer, but only in relation to the shares transferred; and |
| (B) | receipt by the Company, in a form satisfactory to the Board, of all the information required by the Section 793 Notice. |
| 73.8 | The Board may, to enable the Company to deal with Default Shares in accordance with the provisions of this Article: |
| (A) | give notice in writing to any member holding Default Shares in uncertificated form or to any other person who is interested in Default Shares which are represented by Depositary Interests, requiring the member who holds such Default Shares and/or the person holding Depositary Interests: |
| (1) | to change his holding of such shares from uncertificated form into certificated form in the name of the member or his holding of such shares represented by Depositary Interests into certificated shares only in the name of the person who is interested in the Depositary Interests, as applicable, within a specified period; and |
| (2) | then to hold such Default Shares in certificated form for so long as the default subsists; and |
| (B) | appoint any person to take any steps, by instruction by means of the Uncertificated System or otherwise, in the name of any holder of Default Shares as may be required to change such Default Shares from uncertificated form into certificated form or where a person has an interest in Default Shares which are represented by Depositary Interests to change such Default Shares represented by Depositary Interests into certificated form only in the name of the interested person (and such steps shall be effective as if they had been taken by such holder). |
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| 73.9 | None of the provisions contained in this Article shall in any way limit or restrict the rights of the Company under sections 793 and 794 of the 2006 Act or any order made by the court under section 794 or elsewhere under Part 22 of the 2006 Act nor shall any sanction imposed by the Board pursuant to this Article cease to have effect, otherwise than as provided in this Article, unless it is so ordered by the court. |
APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS
| 74. | NUMBER OF DIRECTORS |
The number of Directors shall be as the Board may determine from time to time and at the date of adoption of these Articles shall be not more than 15 (fifteen) and not less than 7 (seven).
| 75. | NO SHARE QUALIFICATION |
A Director need not hold any shares but shall be entitled to receive notice of, attend and speak at all general meetings of the Company and of any class of members of the Company.
| 76. | COMPANY’S POWER TO APPOINT DIRECTORS |
| 76.1 | Subject to these Articles, the Company may by ordinary resolution appoint a person who is willing to act to be a Director, either to fill a vacancy or as an addition to the existing Directors, subject to the total number of Directors not exceeding any maximum number fixed by or in accordance with these Articles. |
| 76.2 | A resolution for the appointment of two or more persons as Directors by a single resolution at a general meeting shall be void unless an ordinary resolution that the resolution for appointment be proposed in such way has first been agreed to by the meeting without any vote being given against it. |
| 77. | BOARD’S POWER TO APPOINT DIRECTORS |
Without prejudice to the Company’s power to appoint a person to be a Director pursuant to these Articles, the Board shall have power at any time to appoint any person who is willing to act as a Director, either to fill a vacancy or as an addition to the existing Board or as a successor to a Director who is not re-elected at an annual general meeting and whose successor is not elected at such annual general meeting, subject to the total number of Directors not exceeding any maximum number fixed by or in accordance with these Articles.
| 78. | APPOINTMENT OF EXECUTIVE DIRECTORS |
Subject to the 2006 Act, the Board may appoint one or more of its members to an executive office or other position of employment with the Company for such term (subject to the 2006 Act) and on any other conditions the Board thinks fit. The Board may revoke, terminate or vary the terms of any such appointment, without prejudice to a claim for damages for breach of contract between the Director and the Company.
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| 79. | ANNUAL RE-ELECTION |
| 79.1 | Commencing with the annual general meeting of the Company in 2016, Directors shall stand for re-election at each annual general meeting of the Company. |
| 79.2 | Notwithstanding that a Director might not be re-elected at an annual general meeting, such Director shall nethertheless hold office until his successor is elected or is appointed by the Board pursuant to Article 77, or until his earlier resignation or removal in accordance with these Articles or the 2006 Act. |
| 79.3 | A Director whose term expires at an annual general meeting may, if willing to act, be re-appointed. |
| 80. | ELIGIBILITY OF NEW DIRECTORS |
No person shall be eligible for nomination for election or re-election as Director at any general meeting unless:
| (A) | he is recommended by the Board for appointment or, in the case of a Director retiring, re-appointment; or |
| (B) | in any other case, the requirements of Article 62 and 63 in respect of nominations of Directors are satisfied. |
| 81. | REMOVAL BY ORDINARY RESOLUTION |
In addition to any power of removal under the 2006 Act and subject to the provisions of these Articles, including, without limitation, Articles 62, 63 and 80 the Company may:
| (A) | by ordinary resolution, of which special notice has been given in accordance with section 312 of the 2006 Act, remove any Director before the expiration of his period of office, but without prejudice to any claim for damages which he may have for breach of any contract of service between him and the Company; and |
| (B) | by ordinary resolution appoint another person in place of a Director removed under Article 81(A); and |
| (C) | without prejudice to the powers of the Directors in Article 77, appoint any person to be a Director either to fill a casual vacancy or as an additional Director. |
Any person so appointed under paragraph 81(B) shall be treated, for the purposes of determining the time at which he or any other Director is to retire, as if he had become a Director on the day on which the person in whose place he is appointed was last appointed or re-appointed a Director.
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| 82. | VACATION OF DIRECTOR’S OFFICE |
| 82.1 | Without prejudice to the provisions in these Articles for retirement, the office of a Director shall be vacated if: |
| (A) | he resigns by notice in writing delivered to the Secretary at the Registered Office or tendered at a Board meeting; |
| (B) | he only held office as a Director for a fixed term and such term expires; |
| (C) | he ceases to be a Director by virtue of any provision of the Statutes, is removed from office pursuant to these Articles or the Statutes or becomes prohibited by law from being a Director; |
| (D) | he becomes bankrupt, has an interim receiving order made against him, makes any arrangement or compounds with his creditors generally or applies to the court for an interim order in connection with a voluntary arrangement under any legislation relating to insolvency; |
| (E) | an order is made by any court of competent jurisdiction on the ground (however formulated) of mental disorder for his detention or for the appointment of a guardian or receiver or other person to exercise powers with respect to his property or affairs or he is admitted to hospital in pursuance of an application for admission for treatment under any legislation relating to mental health and the Board resolves that his office be vacated; |
| (F) | he is absent, without permission of the Board, from Board meetings for six consecutive months and the Board resolves that his office be vacated; |
| (G) | he is removed from office by notice in writing addressed to him at his address as shown in the Company’s register of directors and signed by not less than three-quarters of all the Directors in number (rounded down to the nearest whole number and excluding the Director in question) (without prejudice to any claim for damages which he may have for breach of contract against the Company); or |
| (H) | in the case of a Director who holds executive office, his appointment to such office is terminated or expires and the Board resolves that his office be vacated. |
| 82.2 | A resolution of the Board declaring a Director to have vacated office pursuant to this Article shall be conclusive as to the fact and grounds of vacation stated in the resolution. |
BOARD POWERS
| 83. | BOARD POWERS |
Subject to the Statutes, the Company’s memorandum of association and these Articles and to any directions given by special resolution of the Company, the business of the Company shall be managed by the Board, which may exercise all the powers of the Company whether
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relating to the management of the business or not. No alteration of the memorandum of association or of these Articles nor any such direction shall invalidate any prior act of the Board which would have been valid if such alteration had not been made or such direction had not been given. The provisions in these Articles giving specific powers to the Board shall not limit the general powers given by this Article.
| 84. | DIRECTORS BELOW THE MINIMUM NUMBER |
If the number of Directors is less than the minimum prescribed in accordance with these Articles, the remaining Director or Directors shall act only for the purposes of appointing an additional Director or Directors to make up such minimum or of convening a general meeting of the Company for the purpose of making such appointment. If there are no Director or Directors able or willing to act, any two members may summon a general meeting for the purpose of appointing Directors. Any additional Director so appointed shall hold office (subject to these Articles) only until the dissolution of the annual general meeting next following such appointment unless he is re-elected during such meeting.
| 85. | DELEGATION TO EXECUTIVE DIRECTORS |
The Board may delegate to a Director holding executive office any of its powers, authorities and discretions for such time and on such terms and conditions as it shall think fit. The Board may grant to a Director the power to sub-delegate, and may retain or exclude the right of the Board to exercise the delegated powers, authorities or discretions collaterally with the Director. The Board may at any time revoke the delegation or alter its terms and conditions.
| 86. | DELEGATION TO COMMITTEES |
| 86.1 | The Board may delegate any of its powers, authorities and discretions (including, without limitation, those relating to the payment of monies or other remuneration to, and the conferring of benefits on, a Director) for such time and on such terms and conditions as it shall think fit to a committee consisting of one or more Directors and (if thought fit) one or more other persons. The Board may grant to the committee the power to sub-delegate, and may retain or exclude the right of the Board to exercise the delegated powers, authorities or discretions collaterally with the committee. The Board may at any time revoke the delegation or alter its terms and conditions or discharge the committee in whole or in part. Where a provision of the Articles refers to the exercise of a power, authority or discretion by the Board and that power, authority or discretion has been delegated by the Board to a committee, the provision shall be construed as permitting the exercise of the power, authority or discretion by the committee. |
| 86.2 | The Board’s power under these Articles to delegate to a committee: |
| (A) | includes (without limitation) the power to delegate the determination of any fee, remuneration or other benefit to be paid or provided to any Director; and |
| (B) | is not limited by the fact that in some Articles but not others express reference is made to particular powers being exercised by the Board or by a committee. |
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| 87. | LOCAL MANAGEMENT |
The Board may establish local or divisional boards, agencies or branch offices for managing the affairs of the Company in a specified locality, either in the United States or elsewhere, and may appoint persons to be members of a local or divisional board, agency or branch office and may fix their remuneration. The Board may delegate to a local or divisional board, agency or branch office any of its powers, authorities and discretions for such time and on such terms and conditions as it thinks fit. The Board may grant to such local or divisional board, agency or branch office the power to sub-delegate, may retain or exclude the right of the Board to exercise the delegated powers, authorities or discretions collaterally with the local or divisional board, agency or branch office and may authorise the members of a local or divisional board, agency or branch (or any of them) to fill a vacancy or to act despite a vacancy. The Board may at any time revoke or alter the terms and conditions of the appointment or delegation. Subject to the terms and conditions imposed by the Board, the proceedings of a local or divisional board, agency or branch office with two or more members are governed by those Articles that regulate the proceedings of the Board, so far as applicable.
| 88. | DELEGATION TO AGENTS |
The Board may, by power of attorney or otherwise, appoint a person to be the agent of the Company and may delegate to such person any of its powers, authorities and discretions for such purposes, for such time and on such terms and conditions (including as to remuneration) as it thinks fit. The Board may grant the power to sub-delegate and may retain or exclude the right of the Board to exercise the delegated powers, authorities or discretions collaterally with the agent. The Board may at any time revoke or alter the terms and conditions of the appointment or delegation.
| 89. | EXERCISE OF VOTING POWER |
The Board may exercise or cause to be exercised the voting power conferred by shares in any other body corporate held or owned by the Company. or any power of appointment to be exercised by the Company, in any manner it thinks fit (including the exercise of the voting power or power of appointment in favour of the appointment of any Director as a director or other officer or employee of such company or in favour of the payment of remuneration to the directors, officers or employees of such company).
| 90. | PROVISION FOR EMPLOYEES |
The Board may exercise any power conferred on the Company by the Statutes to make provision for the benefit of persons employed or formerly employed by any Group Member in connection with the cessation or the transfer to any person of the whole or part of the undertaking of such Group Member.
| 91. | OVERSEAS REGISTERS |
Subject to the Statutes and the Uncertificated Securities Regulations, the Board may exercise the powers conferred on the Company with regard to the keeping of an overseas branch, local or other register in relation to members and may make and vary such regulations as it thinks fit concerning the keeping of any such register.
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| 92. | ASSOCIATE DIRECTORS |
The Board may appoint any person (not being a Director) to any office or employment having a designation or title including the word “director” or attach to any existing office or employment with the Company such designation or title and may terminate any such appointment or the use of such designation or title. The inclusion of the word “director” in the designation or title of any such office or employment shall not imply that such person is, or is deemed to be, or is empowered in any respect to act as, a Director for any of the purposes of the Statutes or these Articles.
| 93. | BORROWING POWERS |
Subject to the Statutes, the Board may exercise all the powers of the Company to borrow money and to mortgage or charge all or part of the undertaking, property and assets (present or future) and uncalled capital of the Company and, subject to sections 549 and 551 of the 2006 Act, to create and issue debentures and other securities, whether outright or as collateral security for a debt, liability or obligation of the Company or of any third party.
| 94. | CHANGE OF COMPANY NAME |
The name of the Company may be changed with the approval of the Board.
DIRECTORS’ REMUNERATION, EXPENSES AND BENEFITS
| 95. | FEES |
The Company shall pay to the Directors for their services as Directors such aggregate amount of fees as the Board decides. The aggregate fees shall be divided among the Directors in such proportions as the Board decides or, if no decision is made, equally. A fee payable to a Director pursuant to this Article shall be distinct from any salary or remuneration payable to him under a service agreement or other amount payable to him pursuant to other provisions of these Articles and accrues from day to day.
| 96. | EXPENSES |
A Director may also be paid all travelling, hotel and other expenses properly incurred by him in connection with his attendance at meetings of the Board or of committees of the Board or general meetings or separate meetings of the holders of any class of shares or otherwise in connection with the discharge of his duties as a Director, including (without limitation) any professional fees incurred by him (with the approval of the Board or in accordance with any procedures stipulated by the Board) in taking independent professional advice in connection with the discharge of such duties.
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| 97. | REMUNERATION OF EXECUTIVE DIRECTORS |
The salary or remuneration of a Director appointed to hold employment or executive office in accordance with the Articles may be a fixed sum of money, or wholly or in part governed by business done or profits made, or as otherwise decided by the Board (including, for the avoidance of doubt, by the Board acting through a duly authorised Board committee), and may be in addition to or instead of a fee payable to him for his services as Director pursuant to these Articles.
| 98. | SPECIAL REMUNERATION |
A Director who, at the request of the Board, goes or resides abroad, makes a special journey or performs a special service on behalf of or for the Company (including, without limitation, services as a chairman or vice-chairman of the Board, services as a member of any Board committee and services which the Board considers to be outside the scope of the ordinary duties of a Director) may be paid such reasonable additional remuneration (whether by way of salary, bonus, commission, percentage of profits or otherwise) and expenses as the Board (including, for the avoidance of doubt, the Board acting through a duly authorised Board committee) may decide.
| 99. | PENSIONS AND OTHER BENEFITS |
The Board may exercise all the powers of the Company to provide pensions or other retirement or superannuation benefits and to provide death or disability benefits or other allowances or gratuities (by insurance or otherwise) for a person who is or has at any time been a Director, an officer or a director or an employee of a company which is or was a Group Member, a company which is or was allied to or associated with the Company or with a Group Member or a predecessor in business of the Company or of a Group Member (and for any member of his family, including a spouse or former spouse, or a person who is or was dependent on him). For this purpose the Board may establish, maintain, subscribe and contribute to any scheme, trust or fund and pay premiums. The Board may arrange for this to be done by the Company alone or in conjunction with another person. A Director or former Director is entitled to receive and retain for his own benefit any pension or other benefit provided in accordance with this Article and is not obliged to account for it to the Company.
DIRECTORS’ PROCEEDINGS
| 100. | BOARD MEETINGS |
Subject to these Articles, the Board may regulate its proceedings as it thinks fit. A Director may, and the Secretary at the request of a Director shall, call a meeting of the Board.
| 101. | NOTICE OF BOARD MEETINGS |
Notice of a Board meeting shall be deemed to be duly given to a Director if it is given to him personally or by word of mouth or sent in writing to his last known address or any other address given to the Company by him for such purpose or given by electronic
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communications to an address for the time being notified to the Company by the Director. It shall not be necessary to give notice of a Board meeting to a Director who is absent with leave unless the Director has notified the Company in writing of an address or an address for electronic communications at which notice of such meetings is to be given to him when he is absent with leave. A Director may be treated as having waived his entitlement to notice of a meeting of the Board if he has not supplied the Company with the information necessary to ensure that he receives notice of a meeting before it takes place. A Director may waive the requirement that notice of any Board meeting be given to him, either prospectively or retrospectively.
In this Article “address”, in relation to documents in electronic form, includes any number or address used for the supply of documents in electronic form.
| 102. | QUORUM |
No business shall be transacted at any meeting of the Board unless a quorum is present. The quorum may be fixed by the Board and unless so fixed at any other number shall be a majority in number of the Directors. A duly convened Board meeting at which a quorum is present shall be competent to exercise any and all of the authorities, discretions and powers vested in or exercisable by the Board.
| 103. | BOARD CHAIRMAN |
The Board may appoint any Director to be, and may remove, a chairman and a vice- or deputy chairman of the Board. The chairman or, in his absence, the vice- or deputy chairman, shall preside at all Board meetings. If there is no chairman or vice- or deputy chairman, or if at a Board meeting neither the chairman nor the vice- or deputy chairman is present within ten minutes after the time appointed for the meeting, or if neither of them is willing to act as chairman, the Directors present may choose any Director present to be chairman of the meeting.
| 104. | VOTING |
Questions arising at a meeting shall be decided by a simple majority of votes of the Directors present at the meeting. For the avoidance of doubt, in the case of an equality of votes, the chairman shall have a second or casting vote.
| 105. | TELEPHONE PARTICIPATION |
A Director may participate in a meeting of the Board or a committee of the Board through the medium of conference telephone, video conferencing or any other form of communication equipment if all persons participating in the meeting are able to hear and speak to each other throughout the meeting. A person participating in this way shall be deemed to be present in person at the meeting and shall be counted in a quorum and entitled to vote. Subject to the Statutes, all business transacted in this way by the Board or a committee of the Board shall be deemed for the purposes of the Articles to be validly and effectively transacted at a meeting of the Board or a committee of the Board even if one Director only is physically present at any one place. The meeting shall be deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is.
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| 106. | WRITTEN RESOLUTIONS |
| 106.1 | A resolution in writing executed by all the Directors for the time being entitled to receive notice of a Board meeting and unanimously in number, or by all the members of a committee of the Board for the time being entitled to receive notice of the meetings of such committee and unanimously in number, shall be as valid and effective for all purposes as a resolution duly passed at a meeting of the Board (or committee, as the case may be). |
| 106.2 | Such a resolution: |
| (A) | may consist of several documents in the same form each executed by one or more of the Directors or members of the relevant committee, including executions evidenced by facsimile transmission; and |
| (B) | to be effective, need not be signed by a Director who is prohibited by these Articles from voting on it. |
| 107. | COMMITTEE PROCEEDINGS |
Proceedings of committees of the Board shall be conducted in accordance with regulations prescribed by the Board (if any). Subject to those regulations, such proceedings shall be conducted in accordance with applicable provisions of these Articles regulating the proceedings of the Board. Where the Board resolves to delegate any of its powers, authorities and discretions to a committee and such resolution states that the committee shall consist of any one or more unnamed Directors, it shall not be necessary to give notice of a meeting of such committee to any Directors other than the Director or Directors who form the committee.
| 108. | MINUTES |
| 108.1 | The Board shall cause minutes to be made of: |
| (A) | all appointments of officers and committees made by the Board and of any such officer’s remuneration; and |
| (B) | the names of Directors present at every meeting of the Board, a committee of the Board, the Company or the holders of any class of shares or debentures, and all orders, resolutions and proceedings of such meetings. |
| 108.2 | Any such minutes, if purporting to be signed by the chairman of the meeting at which the proceedings were held or by the chairman of the next succeeding meeting or the Secretary, shall be prima facie evidence of the matters stated in them. |
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| 109. | VALIDITY OF PROCEEDINGS |
All acts done in good faith by a meeting of the Board, or of a committee of the Board, or by a person acting as a Director or a committee member shall, notwithstanding that it may be discovered afterwards that there was a defect in the appointment of any person so acting or that any of them were disqualified from holding office, or had vacated office, or were not entitled to vote, be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director or committee member and entitled to vote.
INTERESTS OF DIRECTORS
| 110. | CONTRACTING WITH THE COMPANY |
Subject to the provisions of the Statutes, no Director or intending Director shall be disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, nor shall any such contract or any transaction or arrangement entered into on behalf of the Company in which any Director is in any way directly or indirectly interested be liable to be avoided, nor shall any Director so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office, or of the fiduciary relationship thereby established, provided that the nature of this interest has been declared by him in accordance with Article 111.
| 111. | DECLARATION OF INTERESTS |
| 111.1 | A Director who is in any way (directly or indirectly) interested in an existing or proposed transaction or arrangement with the Company shall declare the nature and extent of his interest to the other Directors: (i) at a meeting of the Directors; or (ii) by a notice in writing in accordance with section 184 of the 2006 Act; or (iii) by a general notice in accordance with section 185 of the 2006 Act, in the case of an existing transaction as soon as is reasonably practicable after the Director becomes so interested and in the case of a proposed transaction, prior to such transaction or arrangement being entered into by the Company. If a declaration of interest under this Article proves to be, or becomes, inaccurate or incomplete, a further declaration must be made. This Article does not require a declaration of an interest of which the Director is not aware or where the Director is not aware of the transaction or arrangement in question. For this purpose a Director shall be deemed to be aware of matters of which he ought reasonably to be aware. A Director need not declare an interest in the circumstances set out in section 177(6) or 182(6) (as applicable) of the 2006 Act. |
| 111.2 | Provided that a Director has declared the nature and extent of his interest to the other Directors, a Director notwithstanding his office: |
| (A) | may be a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is otherwise interested; and |
| (B) | may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate in which the Company is interested, |
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and (i) he shall not, by reason of his office, be accountable to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate; (ii) he shall not infringe his duty to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company as a result of any such office or employment or any such transaction or arrangement or any interest in such body corporate; (iii) he shall not be required to disclose to the Company, or use in performing his duties as a Director of the Company, any confidential information relating to such office or employment if to make such disclosure or use would result in a breach of a duty or obligation of confidence owed by the Director in relation to or in connection with such office or employment; (iv) he may absent himself from discussions, whether in meetings of the Directors or otherwise, and exclude himself from information which will or may relate to such office, employment, transaction, arrangement or interest; and (v) no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit.
| 112. | AUTHORISATION OF BOARD OF CONFLICTS OF INTERESTS |
| 112.1 | The Directors are empowered to authorise a Director in relation to any matter proposed to the Board which, if not so authorised, would infringe the duty to avoid conflicts of interest as set out in section 175 of the 2006 Act. The Directors may give any such authorisation upon such terms as they think fit. The Directors may vary or terminate any such authorisation at any time. |
| 112.2 | If a matter, or office, employment or position has been authorised by the Directors in accordance with this Article 112 then (subject to such terms and conditions, if any, as the Directors may think fit to impose from time to time, and always subject to their right to vary or terminate such authorisations or the permissions set out below): |
| (A) | the Director shall not be required to disclose any confidential information relating to such matter, or office, employment or position to the Company if to make such a disclosure would result in a breach of a duty or obligation of confidence owed by him in relation to or in connection with that matter, or that office, employment or position; |
| (B) | the Director may absent himself from meetings of the Directors at which anything relating to that matter will or may be discussed; and |
| (C) | the Director may make such arrangements as such Director thinks fit for relevant papers to be received and read by a professional adviser on behalf of that Director. |
| 112.3 | A Director shall not, by reason of his office, be accountable to the Company for any benefit which he derives from any matter which has been approved by the Directors pursuant to this Article 112 (subject in any such case to any limits or conditions to which such approval was subject). |
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| 113. | PROHIBITION ON VOTING BY INTERESTED DIRECTORS |
Except as otherwise provided in these Articles, a Director shall not vote in respect of any contract or arrangement or any other proposal whatsoever in which he has any material interest otherwise than by virtue of his interests in shares or debentures or other securities of or otherwise in or through the Company or any resolution of the Directors granting him authorisation under Article 112. A Director shall not be counted in the quorum of a meeting in relation to any resolution on which he is debarred from voting.
| 114. | ABILITY OF INTERESTED DIRECTORS TO VOTE |
A Director shall (in the absence of a material interest other than those indicated below) be entitled to vote (and be counted in the quorum) in respect of any resolution concerning any of the following matters, namely:
| (A) | the giving of any security or indemnity to him in respect of money lent or obligations incurred by him at the request of or for the benefit of the Company or any of its subsidiary undertakings; |
| (B) | the giving of any security or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiaries for which he himself has assumed responsibility in whole or in part under a guarantee or indemnity or by the giving of security; |
| (C) | any proposal concerning an offer of shares or debentures or other securities of or by the Company or any of its subsidiary undertakings for subscription or purchase in which offer he is or is to be interested as a participant in the underwriting or sub underwriting thereof; |
| (D) | any proposal concerning any other company in which he is interested, directly or indirectly and whether as an officer or member or otherwise howsoever, provided that he is not interested (as that term is used in section 820 of the 2006 Act) in one per cent or more of any class of the equity share capital of such company (or of any third company through which his interest is derived) or of the voting rights available to members of the relevant company (any such interest being deemed for the purpose of this Article to be a material interest in all the circumstances); |
| (E) | any proposal concerning the adoption, modification or operation of a superannuation fund or retirement, death or disability benefits scheme under which he may benefit and which has been approved by or is subject to and conditional upon approval by the Board of Inland Revenue for taxation purposes; |
| (F) | any proposal relating to any arrangement for the benefit of employees under which he benefits or may benefit in a similar manner as the employees and which does not accord to him as a Director any privilege or advantage not generally accorded to the employees to whom the arrangement relates; or |
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| (G) | subject to the Statutes, any proposal concerning the purchase and/or maintenance of any insurance policy under which a Director may benefit. |
| 115. | DIVISION OF PROPOSALS |
Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments with the Company or any company in which the Company is interested, such proposals may be divided and considered in relation to each Director separately. In such case each of the Directors concerned (if not debarred from voting under the proviso to paragraph 114(0) shall be entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment.
| 116. | RULINGS ON QUESTIONS OF ENTITLEMENT TO VOTE |
If any question shall arise at any meeting as to the materiality of a Director’s interest or as to the entitlement of any Director to vote and such question is not resolved by his voluntarily agreeing to abstain from voting, such question shall (unless the Director in question is the chairman in which case he shall withdraw from the meeting and the Board shall elect a deputy chairman to consider the question in place of the chairman) be referred to the chairman of the meeting and his ruling in relation to any other Director shall be final and conclusive, except in a case where the nature or extent of the interest of the Director concerned has not been fairly disclosed.
| 117. | INTERESTS OF CONNECTED PERSONS |
For the purposes of these Articles, an interest of any person who is for any purpose of the 2006 Act (excluding any statutory modification thereof not in force when these Articles became binding on the Company) connected with a Director shall be taken to be the interest of that Director.
| 118. | REMUNERATION FOR PROFESSIONAL SERVICES |
Any Director may act by himself or his firm in a professional capacity for the Company and he or his firm shall be entitled to a remuneration for professional services as if he were not a Director provided that nothing herein contained shall authorise a Director or his firm to act as the Auditors.
| 119. | DIRECTORSHIPS OF OTHER COMPANIES |
Any Director may continue to be or become a director of, or hold any other office or place of profit under, any other company in which the Company may be interested, and no such Director shall be accountable for any remuneration, salary, commission, participation in profits, pension, superannuation or other benefits received by him as a director of, or holder of any other office or place of profit under, or member of, any such other company. The Board may exercise the voting power conferred by the shares in any company held or owned by the Company in such manner in all respects as it may think fit (including the exercise thereof in favour of any resolution appointing the Directors or any of them directors of such company, or voting or providing for the payment of remuneration to the directors of such company).
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SECRETARY
| 120. | SECRETARY |
| 120.1 | Subject to the Statutes, the Board shall appoint a Secretary and may appoint one or more persons to be a joint, deputy or assistant Secretary on such terms and conditions as it thinks fit. The Board may remove a person appointed pursuant to this Article from office and appoint another or others in his place. |
| 120.2 | Any provision of the Statutes or of these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as a Director and as, or in the place of, the Secretary. |
SEALS AND DOCUMENT AUTHENTICATION
| 121. | APPLICATION OF SEAL |
| 121.1 | Any Seal may be used only by the authority of the Board or of a committee of the Board. The Board may decide who is to sign an instrument to which the Seal is to be affixed either generally or in relation to a particular instrument or type of instrument. The Board may decide, either generally or in a particular case, that a signature may be dispensed with or affixed by mechanical means. Unless otherwise decided by the Board: |
| (A) | share certificates and certificates issued in respect of debentures or other securities to which the Seal is affixed (subject to the provisions of the relevant instrument) need not be signed or, if signed, a signature may be applied by mechanical or other means or may be printed; and |
| (B) | every other instrument to which the Seal is affixed shall be signed by one Director and by the Secretary or a second Director. |
| 121.2 | Every share certificate or share warrant shall be issued either under the Seal (which may be affixed to it or printed on by mechanical or other means) or in such other manner as the Board, having regard to the terms of issue, the Statutes and (to the extent applicable) the rules of any investment exchange to which the shares are admitted to trading, may authorise. All references in these Articles to the Seal shall be construed in relation to share certificates and share warrants accordingly. |
| 122. | OFFICIAL SEAL FOR USE ABROAD |
The Company may exercise the powers conferred by the Statutes with regard to having an official seal for use abroad, and those powers shall be vested in the Board.
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| 123. | DIRECTORS OR SECRETARY TO AUTHENTICATE OR CERTIFY |
| 123.1 | A Director or the Secretary or any person appointed by the Board for the purpose may authenticate any documents affecting the constitution of the Company (including the memorandum of association and these Articles) and any resolutions passed by the Company or holders of a class of shares or the Board or any committee of the Board and any books, records, documents and accounts relating to the business of the Company, and may certify copies of or extracts from any such items as true copies or extracts. |
| 123.2 | A document purporting to be a copy of a resolution of the Board or an extract from the minutes of a meeting of the Board or any committee which is certified as aforesaid shall be conclusive evidence in favour of all persons dealing with the Company upon the faith thereof that such resolution has been duly passed or, as the case may be, that such extract is a true and accurate record of the proceedings at a duly constituted meeting. |
DIVIDENDS AND OTHER PAYMENTS
| 124. | DECLARATION |
Subject to the Statutes and these Articles, the Company may by ordinary resolution declare a dividend to be paid to members according to their respective rights and interests in the profits of the Company. No such dividend shall exceed the amount recommended by the Board.
| 125. | INTERIM DIVIDENDS |
Subject to the Statutes, the Board may pay such interim dividends (including any dividend payable at a fixed rate) as appears to the Board to be justified by the profits of the Company available for distribution. If at any time the share capital is divided into different classes, the Board may pay such interim dividends on shares which rank after shares conferring preferential rights with regard to dividend as well as on shares conferring preferential rights, unless at the time of payment any preferential dividend is in arrears. If the Board acts in good faith, it shall not incur any liability to the holders of shares conferring preferential rights for any loss that they may suffer by the lawful payment of an interim dividend on any shares ranking after those with preferential rights.
| 126. | ENTITLEMENT TO DIVIDENDS |
| 126.1 | Except as otherwise provided by these Articles or the rights attached to shares: |
| (A) | a dividend shall be declared and paid according to the amounts paid up (otherwise than in advance of calls) on the nominal value of the shares on which the dividend is paid; and |
| (B) | dividends shall be apportioned and paid proportionately to the amounts paid up on the nominal value of the shares during any portion or portions of the period in respect of which the dividend is paid, but if any share is issued on terms that it shall rank for dividend as from a particular date, it shall rank for dividend accordingly. |
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| 126.2 | Except as otherwise provided by these Articles or the rights attached to shares: |
| (A) | a dividend may be paid in any currency or currencies decided by the Board; |
| (B) | the Company may agree with a member that any dividend declared or which may become due in one currency will be paid to the member in another currency; and |
| (C) | the Directors can decide that a Depositary should receive dividends in a currency other than the currency in which they were declared and can make arrangements accordingly. In particular, if a Depositary has chosen or agreed to receive dividends in another currency, the Directors can make arrangements with the Depositary for payment to be made to the Depositary for value on the date on which the relevant dividend is paid, or a later date decided by the Directors, for which purpose the Board may use any relevant exchange rate current at any time as the Board may select for the purpose of calculating the amount of any member’s entitlement to the dividend. |
| 127. | PAYMENT METHODS |
| 127.1 | The Company may pay a dividend, interest or other amount payable in respect of a share in cash or by cheque, warrant or money order or by a bank or other funds transfer system or (in respect of any uncertificated share) through the Uncertificated System in accordance with any authority given to the Company to do so (whether in writing, through the Uncertificated System or otherwise) by or on behalf of the member in a form or in a manner satisfactory to the Board. Any joint holder or other person jointly entitled to a share may give an effective receipt for a dividend, interest or other amount paid in respect of such share. |
| 127.2 | The Company may send a cheque, warrant or money order by post: |
| (A) | in the case of a sole holder, to his registered address; |
| (B) | in the case of joint holders, to the registered address of the person whose name stands first in the Register of Members; |
| (C) | in the case of a person or persons entitled by transmission to a share, as if it were a notice given in accordance with Article 49 (notice to persons entitled by transmission); |
| (D) | in the case of a Depositary, and subject to the approval of the Directors, to such persons and postal addresses as the Depositary may direct; or |
| (E) | in any case, to a person and address that the person or persons entitled to the payment may in writing direct. |
| 127.3 | Every cheque, warrant or money order shall be sent at the risk of the person or persons entitled to the payment and shall be made payable to the order of the person or persons entitled or to such other person or persons as the person or persons entitled may in writing |
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direct. The payment of the cheque, warrant or money order shall be a good discharge to the Company. If payment is made by a bank or other funds transfer or through the Uncertificated System, the Company shall not be responsible for amounts lost or delayed in the course of transfer. If payment is made by or on behalf of the Company through the Uncertificated System:
| (A) | the Company shall not be responsible for any default in accounting for such payment to the member or other person entitled to such payment by a bank or other financial intermediary of which the member or other person is a customer for settlement purposes in connection with the Uncertificated System; and |
| (B) | the making of such payment in accordance with any relevant authority referred to in paragraph 127.1 above shall be a good discharge to the Company. |
| 127.4 | The Board may: |
| (A) | lay down procedures for making any payments in respect of uncertificated shares through the Uncertificated System; |
| (B) | allow any holder of uncertificated shares to elect to receive or not to receive any such payment through the Uncertificated System; and |
| (C) | lay down procedures to enable any such holder to make, vary or revoke any such election. |
| 127.5 | The Board may lay down procedures for making any payments in respect of shares represented by Depositary Interests. |
| 127.6 | The Board may withhold payment of a dividend (or part of a dividend) payable to a person entitled by transmission to a share until he has provided any evidence of his entitlement that the Board may reasonably require. |
| 128. | DEDUCTIONS |
The Board may deduct from any dividend or other amounts payable to any person in respect of a share all such sums as may be due from him to the Company on account of calls or otherwise in relation to that share.
| 129. | INTEREST |
No dividend or other money payable in respect of a share shall bear interest against the Company, unless otherwise provided by the rights attached to the share.
| 130. | UNCLAIMED DIVIDENDS |
All unclaimed dividends or other monies payable by the Company in respect of a share may be invested or otherwise made use of by the Board for the benefit of the Company until claimed. The payment of any unclaimed dividend or other amount payable by the Company in respect of a share into a separate account shall not constitute the Company a trustee in respect of it. Any dividend unclaimed after a period of twelve (12) years from the date the dividend became due for payment shall be forfeited and shall revert to the Company.
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| 131. | UNCASHED DIVIDENDS |
If, in respect of a dividend or other amount payable in respect of a share:
| (A) | a cheque, warrant or money order is returned undelivered or left uncashed; or |
| (B) | a transfer made by or through a bank transfer system and/or other funds transfer system(s) (including, without limitation, the Uncertificated System in relation to any uncertificated shares) fails or is not accepted, |
on two consecutive occasions, or one occasion and reasonable enquiries have failed to establish another address or account of the person entitled to the payment, the Company shall not be obliged to send or transfer a dividend or other amount payable in respect of such share to such person until he notifies the Company of an address or account to be used for such purpose.
| 132. | DIVIDENDS IN KIND |
A general meeting declaring a dividend may, upon the recommendation of the Board, direct that it shall be satisfied wholly or partly by the distribution of assets (including, without limitation, paid up shares or securities of any other body corporate). Where any difficulty arises concerning such distribution, the Board may settle it as it thinks fit. In particular (without limitation), the Board may:
| (A) | issue fractional certificates or ignore fractions; |
| (B) | fix the value for distribution of any assets, and may determine that cash shall be paid to any member on the footing of the value so fixed in order to adjust the rights of members; and |
| (C) | vest any assets in trustees on trust for the persons entitled to the dividend. |
| 133. | SCRIP DIVIDENDS |
| 133.1 | The Board may, with the prior authority of an ordinary resolution and subject to such terms and conditions as the Board may determine, offer any holders of Ordinary Shares the right to elect to receive Ordinary Shares, credited as fully paid, instead of cash in respect of the whole (or some part, to be determined by the Board) of any dividend specified by the ordinary resolution, subject to the Statutes and to the provisions of this Article. |
| 133.2 | An ordinary resolution under paragraph 133.1 of this Article may specify a particular dividend (whether or not declared), or may specify all or any dividends declared within a specified period, but such period may not end later than the beginning of the fifth annual general meeting next following the date of the meeting at which the ordinary resolution is passed. |
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| 133.3 | The entitlement of each holder of Ordinary Shares to new Ordinary Shares shall be such that the relevant value of the entitlement shall be the cash amount, disregarding any tax credit, (or as near to such cash amount as the Board considers appropriate) that such holder would have received by way of dividend. For this purpose, “relevant value” shall be calculated by reference to the average of the middle market quotations for the Ordinary Shares for the day on which the Ordinary Shares are first quoted “ex” the relevant dividend and the four subsequent dealing days, or in such other manner as may be determined by or in accordance with the ordinary resolution. A written confirmation or report by the Auditors as to the amount of the relevant value in respect of any dividend shall be conclusive evidence of that amount. |
| 133.4 | The Board may make any provision it considers appropriate in relation to an allotment made or to be made pursuant to this Article (whether before or after the passing or the ordinary resolution referred to in paragraph 133.1 of this Article), including (without limitation): |
| (A) | the giving of notice to holders of the right of election offered to them; |
| (B) | the provision of forms of election and/or a facility and a procedure for making elections through the Uncertificated System (whether in respect of a particular dividend or dividends generally); |
| (C) | determination of the procedure for making and revoking elections; |
| (D) | the place at which, and the latest time by which, forms of election and other relevant documents must be lodged in order to be effective; |
| (E) | the disregarding or rounding up or down or carrying forward of fractional entitlements, in whole or in part, or the accrual of the benefit of fractional entitlements to the Company (rather than to the holders concerned); |
| (F) | the exclusion from any offer of any holders of Ordinary Shares where the Board considers that the making of the offer to them would or might involve the contravention of the laws of any territory or that for any other reason the offer should not be made to them; and |
| (G) | the exclusion from any offer of, or the making of any special formalities in connection with any offer to, any holders of Ordinary Shares represented by Depositary Interests. |
| 133.5 | The Directors can exclude or restrict the right to elect to receive new Ordinary Shares under this Article 133 in the case of any member or other person who is a Depositary if the election by the people on whose behalf the Depositary holds the beneficial interest in the shares would involve the contravention of the laws of any territory or if for any other reason the Board determines that the offer should not be made to such persons. |
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| 133.6 | The dividend (or that part of the dividend in respect of which a right of election has been offered) shall not be payable on Ordinary Shares in respect of which a valid election has been made (“the elected Ordinary Shares”). Instead additional Ordinary Shares shall be allotted to the holders of the elected Ordinary Shares on the basis of allotment determined under this Article. For such purpose, the Board may capitalise out of any amount for the time being standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, a sum equal to the aggregate nominal amount of the additional Ordinary Shares to be allotted on that basis and apply it in paying up in full the appropriate number of unissued Ordinary Shares for allotment and distribution to the holders of the elected Ordinary Shares on that basis. |
| 133.7 | The additional Ordinary Shares when allotted shall rank pari passu in all respects with the fully paid Ordinary Shares in issue on the record date for the dividend in respect of which the right of election has been offered, except that they will not rank for any dividend or other entitlement which has been declared, paid or made by reference to such record date. |
| 133.8 | The Board may: |
| (A) | do all acts and things which it considers necessary or expedient to give effect to any such capitalisation, and may authorise any person to enter on behalf of all the members interested into an agreement with the Company providing for such capitalisation and incidental matters and any agreement so made shall be binding on all concerned; |
| (B) | establish and vary a procedure for election mandates in respect of future rights of election and determine that every duly effected election in respect of any Ordinary Shares shall be binding on every successor in title to the holder of such shares; and |
| (C) | terminate, suspend or amend any offer of the right to elect to receive Ordinary Shares in lieu of any cash dividend at any time and generally implement any scheme in relation to any such offer on such terms and conditions as the Board may from time to time determine and take such other action as the Board may deem necessary or desirable from time to time in respect of any such scheme. |
| 134. | RESERVES |
The Board may set aside out of the profits of the Company and carry to reserve such sums as it thinks fit. Such sums standing to reserve may be applied, at the Board’s discretion, for any purpose to which the profits of the Company may properly be applied and, pending such application, may either be employed in the business of the Company or be invested in such investments as the Board thinks fit. The Board may divide the reserve into such special funds as it thinks fit and may consolidate into one fund any special funds or any parts of any special funds into which the reserve may have been divided as it thinks fit. The Board may also carry forward any profits without placing them to reserve.
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| 135. | CAPITALISATION OF PROFITS AND RESERVES |
| 135.1 | The Board may, with the authority of an ordinary resolution: |
| (A) | subject to this Article, resolve to capitalise any undistributed profits of the Company (whether or not available for distribution) or any sum standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution; |
| (B) | appropriate the sum resolved to be capitalised to the members in proportion to the nominal amounts of the shares (whether or not fully paid) held by them respectively which would entitle them to participate in a distribution of that sum if the shares were fully paid and the sum were then distributable and were distributed by way of dividend and apply such sum on their behalf either in or towards paying up the amounts, if any, unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to that sum, and allot the shares or debentures credited as fully paid to those members or as the Board may direct, in those proportions, or partly in one way and partly in the other, but so that the share premium account, the capital redemption reserve and any profits or reserves which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued shares to be allotted to members credited as fully paid; |
| (C) | resolve that any shares so allotted to any member in respect of a holding by him of any partly paid shares shall, so long as such shares remain partly paid, rank for dividend only to the extent that such partly paid shares rank for dividend; |
| (D) | make such provision by the issue of fractional certificates (or by ignoring fractions or by accruing the benefit of fractions to the Company rather than to the members concerned) or by payment in cash or otherwise as the Board may determine in the case of shares or debentures becoming distributable in fractions; |
| (E) | authorise any person to enter on behalf of all the members concerned into an agreement with the Company providing for either: |
| (1) | the allotment to them respectively, credited as fully paid, of any further shares or debentures to which they are entitled upon such capitalisation; or |
| (2) | the payment up by the Company on behalf of such members by the application thereto of their respective proportions of the reserves or profits resolved to be capitalised, of the amounts or any part of the amounts remaining unpaid on their existing shares, |
and so that any such agreement shall be binding on all such members; and
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| (F) | generally do all acts and things required to give effect to such resolution. |
| 135.2 | This Article (which is without prejudice to the generality of the provisions of Article 135) applies where: |
| (A) | the Board has established a Rights Plan and has granted Rights in accordance therewith as provided in Articles 14.1 and 14.2 above; and |
| (B) | the Board has exercised any discretion which may be conferred upon it by any Rights Plan so established to exchange or cause to be exchanged all or part of the Rights (other than Rights held by or on behalf of an Acquiring Person, which would have become void) for Ordinary Shares (and/or Depositary Interests) and/or shares of another class or series. |
| 135.3 | For the purposes of giving effect to any such exchange as is referred to in Article 135.2(B), the Board may: |
| (A) | resolve to capitalise an amount standing to the credit of reserves (including without limitation a share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, being an amount equal to the nominal amount of the Ordinary Shares (including Ordinary Shares to be represented by Depositary Interests) and/or the other shares which are to be exchanged for the Rights (other than Rights held by or on behalf of or for the benefit of an Acquiring Person); and |
| (B) | apply that sum in paying up in full shares and allot such shares, credited as fully paid, to the holders of Rights (other than an Acquiring Person) and/or to a Depositary (including, for the avoidance of doubt, to a nominee of a Depositary) to enable a Depositary to issue Depositary Interests representing such shares to the holders of Rights (other than an Acquiring Person or a person holding shares or interests in shares on behalf of or for the benefit of an Acquiring Person) in exchange for the Rights (other than Rights held by or on behalf of or for the benefit of an Acquiring Person). |
| 135.4 | The provisions of sub-paragraphs 135.1(D), 135.1(E), 135.1(F) shall apply (mutatis mutandis) to any resolution of the Board pursuant to Article 135.3 as they apply to any resolution of the Board pursuant to Article 135.1. |
| 135.5 | For the purposes of this Article 135: |
| (A) | “Rights Plan” and “Rights” shall have the respective meanings ascribed to them in Articles 14.1 and 14.2 (respectively); and |
| (B) | “Acquiring Person” shall have the meaning ascribed to it in Article 14.5. |
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RECORD DATES
| 136. | BOARD TO FIX DATE |
Notwithstanding any other provision of these Articles but without prejudice to the rights attached to any shares and subject to the Statutes the Company or the Board may:
| 136.1 | fix any date (“the record date”) as the date at the close of business (or such other time as the Board may decide) on which persons registered as the holders of shares or other securities shall be entitled to receipt of any dividend, distribution, interest, allotment, issue, notice, information, document or circular; a record date may be on or at any time before any date on which such item is paid, made, given or served or (in the case of any dividend, distribution, interest, allotment or issue) after any date on which such item is recommended, resolved, declared or announced; and |
| 136.2 | for the purposes of determining which persons are entitled to attend and vote at a general meeting of the Company, or a separate general meeting of the holders of any class of shares in the capital of the Company, specify in the notice of meeting a time by which a person must be entered on the register in order to have the right to attend or vote at the meeting. Changes to the register after the time specified by virtue of this Article 136.2 shall be disregarded in determining the rights of any person to attend or vote at the meeting. |
ACCOUNTS
| 137. | ACCESS TO ACCOUNTING RECORDS |
No member (other than an officer of the Company) shall have any right of inspecting any accounting record or other document of the Company unless he is authorised to do so by statute. by order of the court, by the Board or by an ordinary resolution.
| 138. | DISTRIBUTION OF ANNUAL ACCOUNTS |
| 138.1 | In respect of each financial year, a copy of the Company’s annual accounts, Directors’ report and Auditors’ report on those accounts shall be sent by post or delivered or given, in electronic form to an address for the time being notified to the Company by the member (or, where the member is a company, deemed to have been so notified to the Company by a provision of the 2006 Act), to every member, every holder of debentures, and every other person who is entitled to receive notices of general meetings, in each case not less than twenty one (21) clear days before the date of the meeting at which copies of those documents are to be laid in accordance with the Statutes. This Article does not require copies of such documents to be sent or delivered or given to a person who is not entitled to receive notices of general meetings and of whose address the Company is unaware or to more than one of the joint holders of shares or debentures. |
| 138.2 | Where permitted in accordance with the Statutes, the Company may send a summary financial statement to any member instead of or in addition to the documents referred to in paragraph 138.1 of this Article. |
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| 138.3 | References in this Article to sending to any persons printed copies include references to using electronic communications for sending those copies to such address as may for the time being be notified to the Company by that person for that purpose. For the purposes of this Article, copies of those documents are also to be treated as sent to a person where: |
| (A) | the Company and that person have agreed to that person having access to the documents on a website (instead of their being sent to such person); |
| (B) | the documents are documents to which that agreement applies; and |
| (C) | that person is notified, in a manner for the time being agreed for the purpose between such person and the Company, of: |
| (1) | the publication of the documents on a website; |
| (2) | the address of that website; and |
| (3) | the place on that website where the documents may be accessed, and how they may be accessed. |
In this Article, “address” includes any number or address used for the purpose of electronic communications.
| (D) | For the purposes of this Article, documents treated in accordance with Article 138.3 as sent to any person are to be treated as sent to such person not less than twenty one (21) days before the date of a meeting if, and only if: |
| (1) | the documents are published on the website throughout a period beginning at least twenty one (21) days before the date of the meeting and ending with the conclusion of the meeting; and |
| (2) | the notification given for the purposes of Article 138.1(C) is given not less than twenty one (21) days before the date of the meeting. |
| 138.4 | Nothing in Article 138.3 shall invalidate the proceedings of a meeting where: |
| (A) | any documents that are required to be published as mentioned in Article 138.3(C)(1) are published for a part, but not all, of the period mentioned in that paragraph; and |
| (B) | the failure to publish those documents throughout that period is wholly attributable to circumstances which it would not be reasonable to have expected the Company to prevent or avoid. |
| 138.5 | This Article shall not require a copy of the documents referred to in paragraphs 138.1 or 138.2 of this Article to be sent to any person of whose address the Company is not aware or to more than one of the joint holders of any shares or debentures. |
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COMMUNICATIONS
| 139. | COMMUNICATIONS |
Any documents or information to be sent or supplied by or to the Company may be sent or supplied in hard copy form, in electronic form or by means of a website to the extent permitted by the statutes and these Articles.
| 140. | COMMUNICATIONS TO THE COMPANY |
| 140.1 | A document or information is validly sent or supplied by a member to the Company in hard copy form if it is sent or supplied by hand or by post (in a prepaid envelope) to: |
| (A) | an address specified by the Company for the purpose; |
| (B) | the Registered Office; or |
| (C) | an address to which any provision of the Statutes authorises the document or information to be sent or supplied. |
| 140.2 | A document or information may only be sent or supplied by a member to the Company in electronic form if the Company has agreed by notice to the members that the document or information may be sent or supplied in that form (and not revoked that agreement) or the Company is deemed to have so agreed by a provision of the Statutes. |
| 140.3 | Subject to paragraph 140.2 above, where a document or information is sent or supplied by electronic means, it may only be sent or supplied to an address: |
| (A) | specified for the purpose by the Company (generally or specifically); or |
| (B) | deemed by a provision of the Statutes to have been so specified. |
| 141. | COMMUNICATIONS BY THE COMPANY OR THE BOARD IN HARD COPY FORM |
| 141.1 | A document or information sent or supplied by the Company or the Board in hard copy form must be: |
| (A) | handed to the intended recipient; or |
| (B) | sent or supplied by hand or by post (in a pre-paid envelope): |
| (1) | to an address specified for the purpose by the intended recipient; |
| (2) | to a company at its registered office; |
| (3) | to a person in his capacity as a member, at his address as shown in the register; |
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| (4) | to a person in his capacity as a Director, at his address as shown in the register of directors; or |
| (5) | to an address to which any provision of the Statutes authorises the document or information to be sent or supplied. |
| 141.2 | Where the Company is unable to obtain any address falling within paragraph 141.1 above, the document or information may be sent or supplied to the intended recipient’s last address known to the company. |
| 142. | COMMUNICATIONS BY THE COMPANY IN ELECTRONIC FORM |
| 142.1 | A document or information may only be sent or supplied by the Company or the Board in electronic form: |
| (A) | to a person who has agreed (generally or specifically) that the document or information may be sent or supplied in that form (and not revoked that agreement); or |
| (B) | to a company that is deemed to have so agreed by a provision in the Statutes. |
| 142.2 | Where the document or information is sent or supplied by electronic means, it may only be sent or supplied to an address: |
| (A) | specified for the purpose by the intended recipient (generally or specifically); or |
| (B) | where the intended recipient is a company, deemed by a provision of the Statutes to have been so specified. |
| 143. | COMMUNICATIONS BY THE COMPANY BY MEANS OF A WEBSITE |
| 143.1 | A document or information may only be sent or supplied by the Company to a person by being made available on a website if the person: |
| (A) | has agreed (generally or specifically) that the document or information may be sent or supplied to him or her in that manner; or |
| (B) | is taken to have so agreed in accordance with the Statutes, and has not revoked that agreement. |
| 143.2 | A document or information authorised or required to be sent or supplied by means of a website must be made available in a form, and by a means, that the Company reasonably considers will enable the recipient to read it (and see any images contained in it) with the naked eye and to retain a copy of it. |
| 143.3 | The Company must notify the intended recipient of: |
| (A) | the presence of the document or information on the website; |
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| (B) | the address of the website; |
| (C) | the place on the website where it may be accessed; and |
| (D) | how to access the document or information. |
| 143.4 | The document or information is taken to be sent: |
| (A) | on the date on which the notification required by paragraph 143.3 above is sent; or |
| (B) | if later, the date on which the document or information first appears on the website after that notification is sent. |
| 143.5 | The Company must make the document or information available on the website throughout: |
| (A) | the period specified by any applicable provision of the Statutes; or |
| (B) | if no such period is specified, the period of twenty eight (28) days beginning with the date on which the notification required by paragraph 143.3 is sent to the person in question. |
A failure to make a document or information available on a website throughout the period mentioned in this paragraph 143.5 shall be disregarded if (1) it is made available on the website for part of that period and (2) the failure to make it available throughout that period is wholly attributable to circumstances that it would not be reasonable to have expected the Company to prevent or avoid.
| 143.6 | A notice of a general meeting of the Company given by means of a website must: |
| (A) | state that it concerns a notice of a meeting of the Company; |
| (B) | specify the place, date and time of the meeting; and |
| (C) | state whether the meeting is to be an annual general meeting. |
| 144. | COMMUNICATIONS BY OTHER MEANS |
| 144.1 | A document or information that is sent or supplied to the Company otherwise than in hard copy form, electronic form or by means of a website is validly sent or supplied if it is sent or supplied in a form or manner that has been agreed by the Company. |
| 144.2 | A document or information that is sent or supplied by the Company or the Board otherwise than in hard copy form, electronic form or by means of a website is validly sent or supplied if it is sent or supplied in a form or manner that has been agreed by the intended recipient. |
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| 145. | FAILURE TO DELIVER BY ELECTRONIC MEANS |
If any document or information has been sent or supplied by electronic means in accordance with Article 142 to any member at his or her address specified for the purpose or deemed to be so specified and the Company becomes aware of a failure in delivery (and subsequent attempts to send or supply such document or information by electronic means also result in a failure in delivery), the Company shall either:
| (A) | send or supply a hard copy of such document or information to such member; or |
| (B) | notify such member of the information set out in Article 143.3, in each case in the manner described in Article 141.1. |
| 146. | WHEN SERVICE IS EFFECTED ON A MEMBER |
| 146.1 | Where a document or information is, under Article 141.1, sent or supplied by post, service or delivery to a member it shall be deemed to be effected: |
| (A) | if sent by first class post or special delivery post from an address in the United Kingdom to another address in the United Kingdom, or from an address in the United States to another address in the United States, or by a postal service similar to first class post or special delivery post from an address in another country to another address in that other country, at the expiration of twenty four (24) hours after the time when the cover containing the same is posted; or |
| (B) | in any other case, on the third day following that on which the document or information was posted, |
and in proving such service or delivery it shall be sufficient to prove that such cover was properly addressed and posted.
| 146.2 | Where a document or information is, under Article 142, sent or supplied by electronic means to an address specified for the purpose by the intended recipient, service or delivery shall be deemed to be effected on the same day on which it is sent or supplied and in proving such service it will be sufficient to prove that it was properly addressed. |
| 146.3 | Where a document or information is, under Article 143, sent or supplied by means of a website, service or delivery shall be deemed to be effected when (a) the material is first made available on the website or (b) if later, when the recipient received (or, in accordance with this Article 146, is deemed to have received) notification of the fact that the material was available on the website. |
| 147. | NOTICE BY ADVERTISEMENT |
| 147.1 | If at any time by reason of the suspension or curtailment of postal services within the United Kingdom or the United States the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by notice advertised on the same date in at least one national newspaper in the United Kingdom |
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| and/or the United States (as applicable) and such notice shall be deemed to have been duly served on all members entitled thereto on the day when the advertisement appears. In any such case the Company shall send confirmatory copies of the notice by post if at least six clear days prior to the meeting the posting of notices to addresses throughout the United Kingdom or the United States (as applicable) again becomes practicable. |
| 147.2 | Notwithstanding anything in the Statutes or these Articles, if by reason of suspension or curtailment of postal services within the United Kingdom or the United States the Company is unable in the opinion of the Board to deliver the documents referred to in paragraphs 138.1 or |
| 147.3 | of Article 138 (as the case may be) to persons entitled thereto by the time therein prescribed, the Company may nevertheless proceed validly to convene and hold the general meeting before which such documents are to be laid by giving notice of such meeting in accordance with paragraph 147.1 of this Article, but so that the reference in the final sentence of that paragraph to “confirmatory copies of the notice” shall be read to include the relevant documents referred to in Article 138 and the reference therein to “six clear days” shall be read as “three clear days” and provided always that such documents shall be made available for inspection during normal business hours at the Registered Office throughout the period from the date of publication of the notice convening such meeting until the date of the meeting and also at the meeting itself. |
| 148. | DOCUMENTS AND INFORMATION TO JOINT HOLDERS |
All notices directed to be given to the members shall, with respect to any share to which persons are jointly entitled, be given to whichever of such persons is named first in the register, and notice so given shall be sufficient notice to all the holders of such share.
| 149. | SERVICE OF DOCUMENTS AND INFORMATION ON PERSONS ENTITLED TO SHARES BY TRANSMISSION |
A person entitled to a share in consequence of the death or bankruptcy of a member upon supplying to the Company such evidence as the Board may reasonably require to show his title to the share, and upon supplying also an address in the United Kingdom or the United States or such other jurisdiction as the Board may consider appropriate for the service of notices, shall be entitled to have served upon or delivered to him at such address any notice or document to which the member but for his death or bankruptcy would be entitled, and such service or delivery shall for all purposes be deemed to be sufficient service for delivery of such notice or document on all persons interested (whether jointly with or as claiming through or under him) in the share. Save as aforesaid any notice or document delivered or sent by post to or left at the address of any member in pursuance of these presents shall, notwithstanding that such member be then dead or bankrupt, and whether or not the Company shall have notice of his death or bankruptcy, be deemed to have been duly served or delivered in respect of any share registered in the name of such member as sole or first named joint holder.
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| 150. | MEMBERS NOT ENTITLED TO NOTICES, DOCUMENTS AND INFORMATION |
A member who has not supplied to the Company an address for the service of notices shall not be entitled to receive notices from the Company.
| 151. | DOCUMENT DESTRUCTION |
| 151.1 | The Company may destroy: |
| (A) | any share certificate or other evidence of title to shares which has been cancelled at any time after one year from the date of such cancellation; |
| (B) | any mandate for the payment of dividends or other amounts or any variation or cancellation of such mandate or any other instruction concerning the payment of monies or any notification of change of name or address at any time after two years from the date such mandate, variation, cancellation or notification was recorded by the Company; |
| (C) | any instrument or other evidence of transfer of shares or renunciation of an allotment of shares which has been registered at any time after six years from the date of registration; and |
| (D) | any other document on the basis of which an entry in the Register is made at any time after six years from the date an entry in the Register was first made in respect of it, |
and the Company may destroy any such document earlier than the relevant date, provided that a permanent record of the document is made (on microfilm, computer disc or otherwise) which is not destroyed before that date.
| 151.2 | It shall be conclusively presumed in favour of the Company that every entry in the Register of Members purporting to have been made on the basis of a document destroyed in accordance with this Article was duly and properly made, that every instrument of transfer so destroyed was duly registered, that every share certificate so destroyed was valid and was duly cancelled and that every other document so destroyed was valid and effective in accordance with the recorded particulars in the records of the Company, provided that: |
| (A) | this Article shall apply only to the destruction of a document in good faith and without express notice of any claim (regardless of the parties to it) to which the document might be relevant; |
| (B) | nothing in this Article imposes on the Company any liability in respect of the destruction of any such document otherwise than as provided for in this Article which would not attach to the Company in the absence of this Article; and |
| (C) | references in this Article to the destruction of any document include references to the disposal of it in any manner. |
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MISCELLANEOUS
| 152. | INDEMNITY AND INSURANCE |
Subject to and to the fullest extent permitted by the Statutes, but without prejudice to any indemnity to which he may be otherwise entitled:
| 152.1 | every Director (and every director of any associated company of the Company) shall be entitled to be indemnified out of the assets of the Company against all costs and liabilities incurred by him in relation to any proceedings (whether civil or criminal) or any regulatory investigation or action which relate to anything done or omitted or alleged to have been done or omitted by him in his capacity as such save that no such person shall be entitled to be indemnified (whether directly or indirectly): |
| (A) | for any liability incurred by him in connection with any negligence, default, breach of duty or breach of trust in relation to the Company or any associated company of the Company; |
| (B) | for any fine imposed in criminal proceedings which have become final; |
| (C) | for any sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature howsoever arising; |
| (D) | for any liability incurred by him in defending any criminal proceedings in which he is convicted and such conviction has become final; |
| (E) | for any liability incurred by him in defending any civil proceedings bought by the Company or an associated company of the Company in which a final judgment has been given against him; and |
| (F) | for any liability incurred by him in connection with any application under sections 660, 661 or 1157 of the 2006 Act in which the court refuses to grant him relief and such refusal has become final; |
| 152.2 | every Director (and every director of any associated company of the Company) shall be entitled (i) to have funds provided to him by the Company to meet expenditure incurred or to be incurred by him in defending himself in any proceedings (whether civil or criminal) or in connection with an application for relief (as defined in section 205(5) of the 2006 Act) or in an investigation, or against action proposed to be taken. by a regulatory authority or (ii) to receive assistance from the Company as will enable any such person to avoid incurring such expenditure, where such proceedings, application, investigation or action are in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the Company or any associated company of the Company, provided that he will be obliged to repay any funds provided to him no later than: |
| (A) | if he is convicted in such proceedings, the date when the conviction becomes final; or |
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| (B) | in the event of judgment being given against him in such proceedings, the date when the judgment becomes final; or |
| (C) | if the court refuses to grant him such relief, the date when the refusal becomes final; or |
| (D) | if he becomes liable for any sum payable to a regulatory authority by way of penalty in respect of non-compliance with any requirement of a regulatory nature howsoever arising, the date on which any appeal relating to such sum becomes final (within the meaning of section 205(3) of the 2006 Act); and |
| 152.3 | every Director shall be entitled to be indemnified out of the assets of the Company against all costs and liabilities incurred by him in relation to any of the Company’s activities as trustee of an occupational pension scheme (as defined in section 235(6) of the 2006 Act) save that no Director shall be entitled to be indemnified: |
| (A) | for any fine imposed in criminal proceedings which have become final; |
| (B) | for any sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature howsoever arising; and |
| (C) | for any costs for which he has become liable in defending any criminal proceedings in which he is convicted and such conviction has become final. |
| 153. | PURCHASE OF INSURANCE |
Subject to the Statutes, the Board may purchase and maintain insurance at the expense of the Company for the benefit of any person who is or was at any time a director or other officer or employee of the Company or any associated company of the Company or in which the Company has an interest whether direct or indirect or who is or was at any time a trustee of any pension fund or employee benefits trust in which any employee of any such body corporate is or has been interested indemnifying such person against any liability which may attach to him or loss or expenditure which he may incur in relation to anything done or alleged to have been done or omitted to be done as a director, officer, employee or trustee.
| 154. | BUSINESS COMBINATIONS |
| 154.1 | The adoption or authorisation of any Business Combination must be pre-approved with the sanction of an ordinary resolution of the Company. The foregoing vote shall be in addition to any class vote or other vote otherwise required by law, these Articles, or any agreement to which the Company is a party. |
| 154.2 | For the purposes of this Article 154, the term “Business Combination” shall mean the sale or lease or exchange of all or substantially all of the property and of the assets of the Company to any person. |
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| 155. | MANDATORY OFFER PROVISIONS |
| 155.1 | A person must not: |
| (A) | effect or purport to effect a Prohibited Acquisition (as defined in Article 155.10); or |
| (B) | except as a result of a Permitted Acquisition (as defined in Article 155.8): |
| (1) | whether by a series of transactions over a period of time or not, acquire an interest in shares which (on their own or taken together with shares in which persons determined by the Board to be acting in concert with him or her are interested) carry 30 per cent or more of the voting rights of the Company; or |
| (2) | whilst he or she (alone or together with persons determined by the Board to be acting in concert with him or her) is interested in shares that in aggregate carry not less than 30 per cent but not more than 50 per cent of the voting rights of the Company, acquire, whether by himself or herself or with persons determined by the Board to be acting in concert with him or her, an interest in any other shares that (on their own or taken together with any interests in shares held by persons determined by the Board to be acting in concert with him or her) increases the percentage of shares carrying voting rights in which he or she is interested, |
(each of (l) and (2) a “Limit”).
| 155.2 | Where any person breaches any Limit, except as a result of a Permitted Acquisition, or becomes interested in any shares as a result of a Prohibited Acquisition, that person is in breach of these Articles. |
| 155.3 | Where the Board has reason to believe that any Limit is or may be breached or any Prohibited Acquisition has been or may be effected it may require any member or any other person (other than, in each case, a Depositary in its capacity as Depositary) to provide details of (i) any persons acting in concert with such member or other person, (ii) any interests in shares of such member (or other person or any persons acting in concert with them), and (iii) any other information, as in each case the Board considers appropriate to determine any of the matters under this Article 155. |
| 155.4 | Where the Board determines (at any time and without any requirement to have first exercised any of its rights under Article 155.3) that any Limit is breached (and, in the case of a breach of a Limit which is capable of becoming a Permitted Acquisition in accordance with the provisions of Article 155.8(C) at any time when such acquisition has not become a Permitted Acquisition) or any Prohibited Acquisition has been effected (or is purported) by any person or persons (such person, together with any persons determined by the Board to be acting in concert with him or her, being “Breaching Persons”), the Board may do all or any of the following: |
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| (A) | determine that members shall not be entitled in respect of any shares held by or on behalf of the Breaching Persons, or in respect of which the Breaching Persons are interested, in breach of this Article 155 (together, “Relevant Shares”) to be present or to vote or procure or instruct another person to vote (in any such case either in person or by proxy) at a general meeting or at a separate meeting of the holders of a class of shares and, without prejudice to the foregoing, determine that any votes purported to be cast by or on behalf of the Breaching Persons in respect of Relevant Shares at a general meeting or at a separate meeting of the holders of a class of shares shall be disregarded; |
| (B) | determine that any dividend or other distribution (or any part of a dividend or other distribution) or other amount payable in respect of the Relevant Shares shall be withheld by the Company, which shall have no obligation to pay interest on it, and that the relevant member shall not be entitled to elect, pursuant to Article 133, to receive shares instead of a dividend; and |
| (C) | determine that no transfer of any certificated Relevant Shares (other than any Relevant Shares held by a Depositary in its capacity as Depositary) to or from a Breaching Person shall be registered. |
| 155.5 | For the purpose of enforcing the sanctions in Article 155.4 the Board may give notice to the relevant member and/or Breaching Person requiring the member and/or Breaching Person to change the Relevant Shares held in uncertificated form into certificated form or the Relevant Shares which are represented by Depositary Interests into certificated shares, in the name and on behalf of the holder of the Relevant Shares or Depositary Interests in question, as applicable, by the time stated in the notice. The notice may also state that the member and/or Breaching Person may not change any Relevant Shares held in certificated form into uncertificated form or to be represented by Depositary Interests. If the member and/or Breaching Person does not comply with the notice, the Board may require the Operator to convert Relevant Shares held in uncertificated form into certificated form in the name and on behalf of the relevant member and/or Breaching Person in accordance with the Uncertificated Securities Regulations or a Depositary to convert such number of Relevant Shares as are represented by Depositary Interests into certificated form in the name and on behalf of the holder of the Depositary Interests in question. |
| 155.6 | Where any Relevant Shares are held by any Depositary in its capacity as a Depositary, the provisions of this Article 155 shall be treated as applying only to such Relevant Shares held by any such Depositary and not to any other shares held by the relevant Depositary. |
| 155.7 | No Depositary shall be in breach of Article 155.1 or Article 155.2 or be a Breaching Person solely as a result of holding any shares (or interests in shares) in its capacity as a Depositary, provided that any shares held by any such Depositary (or in which such Depositary is interested) may still be Relevant Shares. Notwithstanding the preceding sentence, all interests in shares held by or on behalf of persons other than a Depositary in respect of shares (or interests in shares) held by such Depositary shall be taken into account for all purposes of this Article. |
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| 155.8 | An acquisition is a “Permitted Acquisition” (or, in the case of Article 155.8(C) an acquisition will become a Permitted Acquisition upon completion of the making and implementation of a Mandatory Offer in accordance with, and compliance with the other provisions of, Article 155.8(C)) if: |
| (A) | the Board consents to the acquisition or the acquisition is pursuant to an offer made by or on behalf of the acquirer that is recommended by the Board; or |
| (B) | the acquisition is made as a result of a voluntary offer made and implemented, save to the extent that the Board determines otherwise: |
| (1) | for all of the issued and outstanding shares of the Company (except not necessarily for those already held by the acquirer); |
| (2) | in cash (or accompanied by a full cash alternative); and |
| (3) | otherwise in accordance with the provisions of the Takeover Code (as if the Takeover Code applied to the Company); or |
| (C) | the acquisition is from a single shareholder and is made pursuant to a single transaction which causes a breach of a Limit (otherwise than as a result of an offer) and provided that: |
| (1) | no further acquisitions are made by the acquirer (or any persons determined by the Board to be acting in concert with him or her) other than (a) pursuant to a Mandatory Offer made in accordance with Article 155.8(C)(2) or (b) Permitted Acquisitions under Article 155.8(A), (D) or (E), provided that no such further acquisition (other than pursuant to a Mandatory Offer made in accordance with Article 155.8(C)(2)) shall be or become, in any event, a Permitted Acquisition under this Article 155.8(C); and |
| (2) | the acquirer makes, within 7 days of such breach, and does not subsequently withdraw, an offer which, except to the extent the Board determines otherwise, is made and implemented in accordance with Rule 9 and the other relevant provisions of the Takeover Code (as if it so applied to the Company) (a “Mandatory Offer”), and (for the avoidance of doubt) acquisitions pursuant to a Mandatory Offer shall (subject to compliance with the other provisions of this Article 155.8(C)) also be Permitted Acquisitions; or |
| (D) | the acquisition was approved previously by an ordinary resolution passed by a general meeting of members if no votes are cast in favour of the resolution by or, in the case of shares held by a Depositary for the person in question, at the direction of: |
| (1) | the person proposing to make the acquisition and any persons determined by the Board to be acting in concert with him or her; or |
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| (2) | the persons (if any) from whom the acquirer (together with persons determined by the Board to be acting in concert with him or her) has agreed to acquire shares or interests in shares or has otherwise obtained an irrevocable commitment in relation to the acquisition of shares or interests in shares by the acquirer or any persons determined by the Board to be acting in concert with him or her; or |
| (E) | there is an increase in the percentage of the voting rights attributable to an interest in shares held by a person or by persons determined by the Board to be acting in concert with him or her and such an increase would constitute a breach of any Limit where such increase results from the Company redeeming or purchasing its own shares or interests in shares. |
| 155.9 | Unless the Board determines otherwise, in the case of a Permitted Acquisition pursuant to Articles 155.8(A), 155.8(8) or 155.8(C) above, offers must also be made in accordance with Rule 14, if applicable, and Rule 15 of the Takeover Code (as if Rules 14 and 15 applied to the Company). |
| 155.10 | Unless (a) the acquisition is a Permitted Acquisition, or (b) the Board determines otherwise, an acquisition of an interest in shares is a “Prohibited Acquisition” if Rules 4 (Restrictions on dealings), 5 (Timing restrictions on acquisitions), 6 (Acquisitions resulting in an obligation to offer a minimum level of consideration), 8.1 (Disclosure by an Offeror), 8.4 (Disclosure by Concert Parties) or 11 (Nature of consideration to be offered) of the Takeover Code would in whole or part apply to the acquisition if the Company were subject to the Takeover Code and the acquisition of such interest in shares were made (or, if not yet made, would, if and when made, be) in breach of or otherwise would not comply with any of Rules 4, 5, 6, 8.1, 8.4 or 11 of the Takeover Code. |
| 155.11 | The Board has full authority to determine the application of this Article including as to the deemed application of relevant parts of the Takeover Code (as if it applied to the Company). Such authority shall include all discretion vested in the Takeover Panel (as if the Takeover Code applied to the Company). Any resolution or determination of, or decision or exercise of any discretion or power by, the Board acting in good faith and on such grounds as the Board shall genuinely consider reasonable, irrespective of whether such grounds would be considered reasonable by any other party with or without the benefit of hindsight, shall be conclusive and binding on all persons concerned and shall not be open to challenge, whether as to its validity or otherwise on any ground whatsoever and, in the absence of fraud, the Board shall not owe any duty of care to or have any liability to any person in respect of any cost, loss or expense as a result of any such resolution, determination, decision or exercise of any discretion or power. The Board shall not be required to give any reasons for any decision, determination, resolution or declaration taken or made in accordance with this Article 155. |
| 155.12 | Any one or more of the Directors may act as attorney(s) of any member in relation to the execution of documents and other actions to be taken in respect of Relevant Shares (including Relevant Shares represented by Depositary Interests) as determined by the Board under this Article 155 (including, without limitation, to enforce the sanctions referred to in Article 155.4). |
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| 155.13 | Where used in this Article, the phrases “offer” and “voting rights” shall have the meanings ascribed to them in the Takeover Code. |
| 156. | APPLICATION OF CERTAIN ARTICLES |
| 156.1 | The provisions of Articles 12 and 155 shall be valid and binding on the Company and its members only for so long as the Takeover Code is not deemed by the Takeover Panel to be applicable to the Company. If the Takeover Code is deemed by the Takeover Panel to be applicable to the Company, the provisions of Articles 12 and 155 shall cease to apply in respect of the Company and its members. |
| 157. | DISPUTE RESOLUTION |
| 157.1 | The courts of England and Wales shall have exclusive jurisdiction to determine any dispute related to or connected with (a) any derivative claim in respect of a cause of action vested in the Company or seeking relief on behalf of the Company, (b) any action asserting a claim of breach of a fiduciary or other duty owed by any director or officer or other employee of the Company to the Company or the Company’s members, or (c) any action asserting a claim against the Company or any director or officer or other employee of the Company arising under the laws of England and Wales or pursuant to any provision of the Articles (as either may be amended from time to time). |
| 157.2 | Damages alone may not be an adequate remedy for any breach of this Article 157, so that, in the event of a breach or anticipated breach, the remedies of injunction and/or an order for specific performance would in appropriate circumstances be available. |
| 157.3 | The governing law of the Articles is the substantive law of England. |
| 157.4 | For the purposes of this Article 157: |
| (A) | a “dispute” shall mean any dispute, controversy or claim; |
| (B) | references to “Company” shall be read so as to include each and any of the Company’s subsidiary undertakings from time to time; and |
| (C) | “director” shall be read so as to include each and any director of the Company from time to time in his capacity as such or as an employee of the Company and shall include any former director of the Company. |
| 158. | DEPOSITARY INTERESTS |
| 158.1 | The Directors shall, subject always to applicable law and the provisions of these Articles, have power to implement and/or approve any arrangements which they may, in their absolute discretion, think fit in relation to (without limitation) the evidencing of title to and transfer of Depositary Interests or similar interests in shares. |
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| 158.2 | The Directors may from time to time take such actions and do such things as they may, in their absolute discretion, think fit in relation to the operation of any such arrangements under Article 158.1 including, without limitation, treating holders of Depositary Interests or similar interests in shares as if they were holders directly thereof for the purposes of compliance with any obligations imposed under these Articles on members. |
| 158.3 | If and to the extent that the Directors implement and/or approve any arrangements in relation to the evidencing of title to and transfer of Depositary Interests or similar interests in shares in accordance with Articles 158.1 and 158.2, the Directors shall ensure that such arrangements provide (in so far as is reasonably practicable): |
| (A) | a holder of any such Depositary Interests or similar interest in shares with the same or equivalent rights as a member of the Company including, without limitation, in relation to the exercise of voting rights and provision of information; and |
| (B) | the Company and the Directors with the same or equivalent powers as given under these Articles in respect of a member of the Company, including, without limitation, the powers of the Board under Articles 73 and 155, so that such power may be exercised against a holder of a Depositary Interest or similar interest in shares and the shares represented by such Depositary Interest or similar interest. |
| 159. | SCHEME OF ARRANGEMENT |
| 159.1 | In this Article 159, references to the “Scheme” are to the scheme of arrangement dated January 31, 2019 between the Company and the holders of Scheme Shares (as defined in the Scheme) under Part 26 of the Companies Act 2006 in its original form or with or subject to any modification, addition or condition approved or imposed by the Court and agreed by the Company and STERIS plc (an Irish public limited company with company number 595593 organized under the laws of Ireland) (“STERIS Ireland”). Expressions defined in the Scheme or (if not so defined in the Scheme) defined in the proxy statement/prospectus of the Company and STERIS Ireland dated January 31, 2019 circulated with the Scheme containing the explanatory statement required pursuant to Section 897 of the Companies Act 2006, shall have the same meanings where used in this Article. |
| 159.2 | Notwithstanding any other provision of these Articles, if the Company issues any Ordinary Shares (other than to STERIS Ireland or its nominee(s) or as it shall direct) after the adoption of this Article and at or before the Reduction Record Time, such shares shall be issued subject to the terms of the Scheme (and shall be Scheme Shares for the purposes thereof) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly. |
| 159.3 | Notwithstanding any other provision of these Articles, subject to the Scheme becoming effective, if any Ordinary Shares are issued to any person or his nominee (a “New Shareholder”) (other than to STERIS Ireland or its nominee(s) or as STERIS Ireland shall direct) after the Reduction Record Time (the “Post-Scheme Shares”), they shall be immediately transferred to STERIS Ireland (or to such person as it may direct) free of all |
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| liens, equitable interests, charges, encumbrances, rights of pre-emption and any other third party rights or interests whatsoever in consideration for the allotment, issue or transfer free of all liens, equitable interests, charges, encumbrances, rights of pre-emption and any other third party rights or interests whatsoever to the New Shareholder of such number of fully paid ordinary shares in the capital of STERIS Ireland as would have been allotted and issued to such New Shareholder under the Scheme had such Post-Scheme Shares been Scheme Shares, provided that: |
| (A) | if the Company is advised that the allotment, issue or transfer of any ordinary shares of STERIS Ireland pursuant to this Article would or may infringe the laws of a jurisdiction outside the United Kingdom, Ireland or the United States of America or would or may require the Company or STERIS Ireland to comply with any governmental or other consent or any registration, filing or other formality or requirement with which STERIS Ireland is in its opinion unable to comply or compliance with which STERIS Ireland regards as unduly onerous, the Company may, in its sole discretion, determine that such ordinary shares of STERIS Ireland shall be sold, in which event STERIS Ireland shall appoint a person to act pursuant to this Article and such person shall be authorised on behalf of such holder to procure that any shares in respect of which STERIS Ireland has made such a determination, as soon as practicable following the allotment, issue or transfer of such shares, be sold at the best price which can reasonably be obtained at the time of sale and the net proceeds of such sale (after the deduction of all expenses and commissions, including any value added tax payable thereon) shall be paid to such holder; |
| (B) | the number of ordinary shares of STERIS Ireland issued to a New Shareholder may be adjusted by the Directors of STERIS Ireland on any reorganisation of or material alteration to the share capital of either the Company or STERIS Ireland (including, without limitation, any subdivision and/or consolidation) effected after the close of business on the Scheme Effective Date. References in this Article to Ordinary Shares or ordinary shares of STERIS Ireland shall, following such adjustment, be construed accordingly; |
| (C) | the par value of ordinary shares of STERIS Ireland issued to a New Shareholder following the Scheme becoming effective will be $0.001 per share or such other par value as the directors of STERIS Ireland shall determine; |
| (D) | no fraction of an ordinary share of STERIS Ireland shall be allotted or issued pursuant to this Article and the fractional entitlement of each New Shareholder who would otherwise have been entitled to a fraction of such ordinary shares of STERIS Ireland shall be rounded down to the nearest whole number of STERIS Ireland ordinary shares; |
| (E) | to give effect to any transfer of Post-Scheme Shares, the Company may appoint any person as attorney for the New Shareholder to transfer the Post-Scheme Shares to STERIS Ireland and/or its nominee(s) and do all such other things and execute and deliver all such documents as may in the opinion of the attorney be necessary or |
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| desirable to vest the Post-Scheme Shares of STERIS Ireland and/or its nominee(s) and pending such vesting to exercise all such rights attaching to the Post-Scheme Shares as STERIS Ireland may direct in relation to any dealings with, or disposal of, such share (or any interest therein), exercising any rights attached thereto or receiving any distribution or other benefit accruing or payable in respect thereof. If an attorney is so appointed, the New Shareholder shall not thereafter (except to the extent that the attorney fails to act in accordance with the directions of STERIS Ireland) be entitled to exercise any rights attaching to the Post-Scheme Shares unless so agreed by STERIS Ireland. The attorney shall be empowered to execute and deliver as transferor a form of transfer or other instrument or instruction of transfer on behalf of the New Shareholder (or any subsequent holder) in favor of STERIS Ireland and the Company may give a good receipt for the consideration for the Post-Scheme Shares and may register STERIS Ireland and/or its nominee(s) as holder thereof and issue to it certificates for the same. The Company shall not be obliged to issue a certificate to the New Shareholder for the Post-Scheme Shares; |
| 159.4 | STERIS Ireland shall issue and allot any ordinary shares of STERIS Ireland in respect of any shares transferred pursuant to this Article 159 within 14 days of the issue of the Post-Scheme Shares to the New Shareholder. The ordinary shares of STERIS Ireland to be issued and allotted pursuant to this Article 159 shall be issued in certificated or uncertificated form as STERIS Ireland may determine in its absolute discretion; |
| 159.5 | notwithstanding any other provision of these Articles, neither the Company nor the Directors shall register the transfer of any Scheme Shares effected between the Reduction Record Time and the Scheme Effective Date other than to STERIS Ireland or as STERIS Ireland shall direct in writing; and |
| 159.6 | if the Scheme shall not have become effective by June 30, 2019 (or such later date (if any) as the Company and STERIS Ireland may agree) and the Court may approve, this Article 159 shall be of no effect. |
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APPENDIX
SUMMARY OF EXAMPLE TERMS
RIGHTS TO PURCHASE SHARES OF STERIS LIMITED
Subject to the provisions of the Companies Act 2006 and every other enactment from time to time in force concerning companies (including any orders, regulations or other subordinate legislation made under the Companies Act 2006 or any such other enactment), so far as they apply to or affect STERIS Limited (the “Company”), the Board of Directors of the Company (the “Board”) may exercise any power of the Company to establish a shareholders rights plan (the “Rights Plan”). The Rights Plan may be in such form as the Board shall in its absolute discretion decide and may in particular (but without restriction or limitation) include such terms as are described in this Summary of Example Terms.
Pursuant to the Rights Plan, the Board would declare and issue one Share Purchase Right (a “Right”) for each outstanding Ordinary Share of the Company (the “Ordinary Shares”). Each Right would entitle the registered holder, upon payment to the Company of the price per Right specified in the Rights Plan, to have delivered to such holder Ordinary Shares, Depositary Interests or shares of any other class or series as specified in the Rights Plan (a “Share”), subject to adjustment.
Until the earlier to occur of (i) 10 days following a public announcement that a person or group of affiliated or associated persons or persons acting in concert (a “group”) has acquired beneficial ownership of or an interest in 20% or more of the outstanding Ordinary Shares and Depositary Interests (without duplication) (such person or group, an “Acquiring Person”) and (ii) 10 business days (or such later date as may be determined by action of the Board prior to such time as any person or group were to become an Acquiring Person) following the commencement of, or announcement of an intention to make, a takeover offer by a person or group the consummation of which would result in the beneficial ownership of or an interest in 20% or more of the outstanding Ordinary Shares and Depositary Interests (without duplication) being acquired by that person or group (the earlier of such dates being called the “Distribution Date”), each Right would be associated with an individual Ordinary Share or Depositary Interest, as applicable, and the Rights would be transferred with and only with the Ordinary Shares or Depositary Interests, as applicable.
After the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) would be mailed to (or credited to the account of) holders of record of the Ordinary Shares and Depositary Interests (without duplication) as of the close of business on the Distribution Date. Such separate Right Certificates alone would then evidence the Rights and the Rights would then be separately transferable.
The Rights would not be exercisable until the Distribution Date. The Rights would expire on a date to be specified in the Rights Plan, unless the Rights were earlier redeemed or exchanged by the Company.
After the Distribution Date, each holder of a Right, other than Rights held by or on behalf of any Acquiring Person (which would thereupon become void), would thereafter have the right to receive upon exercise of a Right that number of Shares having a market value of two times the exercise price for the Right.
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If, after a person or group were to become an Acquiring Person, the Company were to be acquired by a third party (including an Acquiring Person) in a securities exchange, proper provisions would be made so that each holder of a Right (other than Rights held by or on behalf of an Acquiring Person, which would have become void) would thereafter have the right to receive upon the exercise of a Right that number of shares of such third party (including an Acquiring Person) or its parent that at the time of such acquisition would have a market value of two times the exercise price of the Right.
At any time after any person or group were to become an Acquiring Person and prior to the acquisition by such Acquiring Person of an interest in 50% or more of the outstanding Ordinary Shares and Depositary Interests (without duplication), the Board would have the authority to exchange or cause to be exchanged the Rights (other than Rights held by or on behalf of such Acquiring Person, which would have become void), in whole or in part, for Shares at an exchange ratio of one Share per Right, subject to the receipt of any consideration required by applicable law to be received by the Company in respect of the same.
At any time before any person or group were to become an Acquiring Person, the Board would have the authority to redeem the Rights in whole, but not in part, at a price per Right to be specified in the Rights Plan (the “Redemption Price”).
Before any person or group became an Acquiring Person, the Board would have the authority, except with respect to the Redemption Price, to amend the Rights Plan in any manner, subject to applicable law and any restrictions set forth in the Articles of Association of the Company. After any person or group became an Acquiring Person, the Board would have the authority, except with respect to the Redemption Price, to amend the Rights Plan in any manner that would not adversely effect the interests of holders of the Rights (other than Rights held by or on behalf of any Acquiring Person, which would have become void).
Before the exercise of a Right, a Right would not entitle the holder thereof to any rights as a shareholder of the Company or as a holder of Depositary Interests including, without limitation, the right to vote or receive dividends in respect of such Right.
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STERIS PLC
as Issuer
AND
THE GUARANTORS PARTY HERETO
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of
, 20
DEBT SECURITIES
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS | 1 | |||||
| Section 1.01. |
Definitions of Terms | 1 | ||||
| ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES | 8 | |||||
| Section 2.01. |
Designation and Terms of Securities | 8 | ||||
| Section 2.02. |
Form of Securities and Trustee’s Certificate | 10 | ||||
| Section 2.03. |
Denominations; Provisions for Payment | 11 | ||||
| Section 2.04. |
Execution and Authentications | 13 | ||||
| Section 2.05. |
Transfer and Exchange | 14 | ||||
| Section 2.06. |
Temporary Securities | 19 | ||||
| Section 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 20 | ||||
| Section 2.08. |
Cancellation | 20 | ||||
| Section 2.09. |
Benefits of Indenture | 20 | ||||
| Section 2.10. |
Authenticating Agent | 21 | ||||
| Section 2.11. |
Global Securities | 21 | ||||
| Section 2.12. |
CUSIP Numbers | 21 | ||||
| Section 2.13. |
Securities Denominated in Foreign Currencies | 21 | ||||
| Section 2.14. |
Wire Transfers | 22 | ||||
| Section 2.15. |
Designated Currency | 22 | ||||
| ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS | 22 | |||||
| Section 3.01. |
Redemption | 22 | ||||
| Section 3.02. |
Notice of Redemption; Partial Redemption | 23 | ||||
| Section 3.03. |
Payment Upon Redemption | 24 | ||||
| Section 3.04. |
Sinking Fund | 24 | ||||
| Section 3.05. |
Satisfaction of Sinking Fund Payments with Securities | 24 | ||||
| Section 3.06. |
Redemption of Securities for Sinking Fund | 25 | ||||
| ARTICLE IV CERTAIN COVENANTS | 25 | |||||
| Section 4.01. |
Payment of Principal, Premium and Interest | 25 | ||||
| Section 4.02. |
Maintenance of Office or Agency | 25 | ||||
| Section 4.03. |
Paying Agents; Security Registrar | 25 | ||||
| Section 4.04. |
Statement by Officers as to Default | 26 | ||||
| Section 4.05. |
Appointment to Fill Vacancy in Office of Trustee | 26 | ||||
| Section 4.06. |
Waiver of Certain Covenants | 26 | ||||
| ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE | 26 | |||||
| Section 5.01. |
Company to Furnish Trustee Names and Addresses of Securityholders | 26 | ||||
| Section 5.02. |
Preservation of Information; Communications with Securityholders | 27 | ||||
| Section 5.03. |
Reports by the Company | 27 | ||||
| Section 5.04. |
Reports by the Trustee | 27 | ||||
i
| ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT | 27 | |||||
| Section 6.01. |
Events of Default | 27 | ||||
| Section 6.02. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 29 | ||||
| Section 6.03. |
Application of Funds Collected | 30 | ||||
| Section 6.04. |
Limitation on Suits | 31 | ||||
| Section 6.05. |
Rights and Remedies Cumulative; Delay or Omission not Waiver | 31 | ||||
| Section 6.06. |
Control by Securityholders | 31 | ||||
| Section 6.07. |
Undertaking to Pay Costs | 32 | ||||
| Section 6.08. |
Waiver of Usury, Stay or Extension of Laws | 32 | ||||
| ARTICLE VII CONCERNING THE TRUSTEE |
32 | |||||
| Section 7.01. |
Certain Duties and Responsibilities of Trustee | 32 | ||||
| Section 7.02. |
Certain Rights of Trustee | 33 | ||||
| Section 7.03. |
Trustee not Responsible for Recitals or Issuance of Securities | 35 | ||||
| Section 7.04. |
May Hold Securities | 35 | ||||
| Section 7.05. |
Funds Held in Trust | 35 | ||||
| Section 7.06. |
Compensation, Reimbursement and Indemnification | 35 | ||||
| Section 7.07. |
Reliance on Officer’s Certificate and other Documents | 36 | ||||
| Section 7.08. |
Disqualification; Conflicting Interests | 36 | ||||
| Section 7.09. |
Corporate Trustee Required; Eligibility | 36 | ||||
| Section 7.10. |
Resignation and Removal; Appointment of Successor | 36 | ||||
| Section 7.11. |
Acceptance of Appointment by Successor | 37 | ||||
| Section 7.12. |
Merger, Conversion, Consolidation or Succession to Business | 38 | ||||
| Section 7.13. |
Preferential Collection of Claims Against the Company | 38 | ||||
| ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
39 | |||||
| Section 8.01. |
Evidence of Action by Securityholders | 39 | ||||
| Section 8.02. |
Proof of Execution by Securityholders | 39 | ||||
| Section 8.03. |
Who May be Deemed Owners | 39 | ||||
| Section 8.04. |
Certain Securities Owned by Company Disregarded | 40 | ||||
| Section 8.05. |
Actions Binding on Future Securityholders | 40 | ||||
| ARTICLE IX SUPPLEMENTAL INDENTURES |
40 | |||||
| Section 9.01. |
Supplemental Indentures Without the Consent of Securityholders | 40 | ||||
| Section 9.02. |
Supplemental Indentures with Consent of Securityholders | 41 | ||||
| Section 9.03. |
Effect of Supplemental Indentures | 42 | ||||
| Section 9.04. |
Securities Affected by Supplemental Indentures | 42 | ||||
| Section 9.05. |
Execution of Supplemental Indentures | 42 | ||||
| ARTICLE X SUCCESSOR |
43 | |||||
| Section 10.01. |
Consolidation, Merger and Sale of Assets by the Company | 43 | ||||
| Section 10.02. |
Consolidation, Merger and Sale of Assets by a Guarantor | 43 | ||||
| ARTICLE XI SATISFACTION AND DISCHARGE |
44 | |||||
| Section 11.01. |
Applicability of Article | 44 | ||||
| Section 11.02. |
Satisfaction and Discharge of Indenture | 44 | ||||
| Section 11.03. |
Defeasance and Discharge of Obligations; Covenant Defeasance | 45 | ||||
| Section 11.04. |
Deposited Funds to be Held in Trust | 46 | ||||
| Section 11.05. |
Payment of Funds Held by Paying Agents | 46 | ||||
| Section 11.06. |
Repayment to the Guarantors or the Company | 47 | ||||
| Section 11.07. |
Reinstatement | 47 | ||||
ii
| ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
47 | |||||
| Section 12.01. |
No Recourse | 47 | ||||
| ARTICLE XIII MISCELLANEOUS PROVISIONS |
48 | |||||
| Section 13.01. |
Effect on Successors and Assigns | 48 | ||||
| Section 13.02. |
Actions by Successor | 48 | ||||
| Section 13.03. |
Notices | 48 | ||||
| Section 13.04. |
Governing Law | 49 | ||||
| Section 13.05. |
Treatment of Securities as Debt | 49 | ||||
| Section 13.06. |
Compliance Certificates and Opinions | 49 | ||||
| Section 13.07. |
Payments on Business Days | 50 | ||||
| Section 13.08. |
Conflict with Trust Indenture Act | 50 | ||||
| Section 13.09. |
Counterparts | 50 | ||||
| Section 13.10. |
Separability | 50 | ||||
| Section 13.11. |
No Adverse Interpretation of Other Agreements | 50 | ||||
| Section 13.12. |
Table of Contents, Headings, Etc. | 50 | ||||
| Section 13.13. |
Consent to Jurisdiction and Service of Process | 50 | ||||
| Section 13.14. |
Waiver of Jury Trial | 51 | ||||
| Section 13.15. |
USA Patriot Act | 51 | ||||
| ARTICLE XIV ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS |
52 | |||||
| Section 14.01. |
Tax Redemption | 52 | ||||
| Section 14.02. |
Payment of Additional Amounts | 52 | ||||
| ARTICLE XV GUARANTEES |
54 | |||||
| Section 15.01. |
Guarantees | 54 | ||||
| Section 15.02. |
Limitation on Guarantor Liability | 55 | ||||
| Section 15.03. |
Execution and Delivery | 56 | ||||
| Section 15.04. |
Subrogation | 56 | ||||
| Section 15.05. |
Benefits Acknowledged | 56 | ||||
| Section 15.06. |
Releases of Guarantees | 56 | ||||
EXHIBITS:
| Exhibit A |
– |
Form of Certificate of Transfer | ||
| Exhibit B |
– |
Form of Certificate of Exchange | ||
| Exhibit C |
– |
Form of Certificate from Acquiring Institutional Accredited Investors |
SCHEDULES:
| Schedule 1 |
– |
List of Guarantors |
iii
Cross Reference Table1
| Section of Trust Indenture Act of 1939, as amended |
Section of Indenture |
|||
| 310(a) |
7.09 | |||
| 310(b) |
7.08 | |||
| 7.10 | ||||
| 310(c) |
Inapplicable | |||
| 311(a) |
7.13 | |||
| 311(b) |
7.13 | |||
| 311(c) |
Inapplicable | |||
| 312(a) |
5.01 | |||
| 5.02(a) | ||||
| 312(b) |
5.02(b) | |||
| 312(c) |
5.02(b) | |||
| 313(a) |
5.04(a) | |||
| 313(b) |
5.04(b) | |||
| 313(c) |
5.04(a) | |||
| 5.04(b) | ||||
| 313(d) |
5.04(b) | |||
| 314(a) |
5.03 | |||
| 314(b) |
Inapplicable | |||
| 314(c) |
13.06 | |||
| 314(d) |
Inapplicable | |||
| 314(e) |
13.06 | |||
| 314(f) |
Inapplicable | |||
| 315(a) |
7.01 | |||
| 315(b) |
6.01(e) | |||
| 315(c) |
7.01(a) | |||
| 315(d) |
7.01(b) | |||
| 315(e) |
6.07 | |||
| 316(a) |
6.06, 8.04 | |||
| 316(b) |
6.04 | |||
| 316(c) |
8.01 | |||
| 317(a) |
6.02 | |||
| 317(b) |
4.03 | |||
| 318(a) |
13.08 | |||
| • | This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
iv
THIS INDENTURE is dated as of , 20 among STERIS PLC, a public limited company incorporated under the laws of Ireland (the “Company”), the Guarantors (as hereinafter defined) named herein and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).
RECITALS
A. This Indenture provides for the issuance of unsecured debt securities (the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more series, to be authenticated by the certificate of the Trustee, and for the issuance of guarantees of the Securities.
B. This Indenture is subject to the provisions of the Trust Indenture Act (as defined below) that are deemed to be incorporated into this Indenture and shall, to the extent applicable, be governed by such provisions.
C. All things necessary to make this Indenture a valid agreement, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of Securities:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions of Terms.
The terms defined in this Section 1.01 (except as in this Indenture otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01 and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act or that are by reference in the Trust Indenture Act defined in the Securities Act of 1933, as amended (the “Securities Act”) (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of the execution of this instrument. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with GAAP.
“144A Global Security”, with respect to any series of Securities, means one or more Global Securities, bearing the Private Placement Legend, that will be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Securities of such series sold in global form in reliance on Rule 144A.
“Additional Amounts” has the meaning set forth in Section 14.02.
“Affiliate”, with respect to any specified Person, means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures”, with respect to any transfer or exchange of or for beneficial interests in any Global Security for a series of Securities, means the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange at the relevant time.
“Authenticating Agent” means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any series of the Securities by the Trustee pursuant to Section 2.10.
“Board of Directors” means the Board of Directors or any similar governing body of the Company or any Guarantor, as applicable, or any duly authorized committee of such Board of Directors or such similar governing body.
“Board Resolution” means a copy of a resolution certified by the Secretary, an Assistant Secretary or any member of the Board of Directors of the Company or any Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in full force and effect on the date of such certification.
“Business Day”, with respect to any series of Securities, means any day other than a Saturday, a Sunday or a day on which Federal or State banking institutions in the Borough of Manhattan, The City of New York, or in the city where the office or agency for payment on the Securities is maintained pursuant to Section 4.02, are authorized or obligated by law, executive order or regulation to close.
“Change in Tax Law” has the meaning set forth in Section 14.01.
“Clearstream” means Clearstream Banking S.A., or its successors. “Commission” means the Securities and Exchange Commission.
“Company” means STERIS plc, a public limited company incorporated under the laws of Ireland, until a successor entity shall have become such pursuant to Article X, and thereafter “Company” shall mean such successor entity.
“Consolidated Total Assets” means, as of any date of determination, the net book value of all assets of the Company and its subsidiaries as shown in the most recent annual or quarterly consolidated balance sheet of the Company.
“Corporate Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered. The Corporate Trust Office for the Trustee as of the date of the execution of this Indenture is located at U.S. Bank National Association, 60 Livingston Avenue, Saint Paul, Minnesota 55107, Attn: Global Corporate Trust.
“Currency” means Dollars or Foreign Currency.
“Default” means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” has the meaning set forth in Section 2.03.
“Definitive Security” means a certificated Security registered in the name of the Securityholder thereof and issued in accordance with Section 2.05.
“Depositary”, with respect to Securities of any series which the Company shall determine will be issued in whole or in part as a Global Security, means The Depository Trust Company (“DTC”), New York, New York, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, and any other applicable U.S. or foreign statute or regulation, which, in each case, shall be designated by the Company pursuant to Section 2.01.
“Designated Currency” has the meaning set forth in Section 2.15.
“Distribution Compliance Period” means the restricted period as defined in Rule 903(b)(3) under the Securities Act.
“Dollar” or “$” means such currency of the United States as at the time of payment is legal tender for the payment of public and private debts.
2
“Dollar Equivalent” means, with respect to any monetary amount in a Foreign Currency, at any time for the determination thereof, the amount of Dollars obtained by converting such Foreign Currency involved in such computation into Dollars at the spot rate for the purchase of Dollars with the applicable Foreign Currency as quoted by JPMorgan Chase Bank, N.A. (unless another comparable financial institution is designated by the Company) in New York, New York, at approximately 11:00 a.m. (New York time) on the date two business days prior to such determination.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“Euroclear” means Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear System.
“Event of Default” has the meaning set forth in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Executed Documentation” has the meaning set forth in Section 13.03.
“Foreign Currency” means a currency issued by the government of any country other than the United States or a composite currency the value of which is determined by reference to the values of the currencies of any group of countries.
“Foreign Paying Agent” has the meaning set forth in Section 2.13.
“GAAP” means generally accepted accounting principles in the United States of America in effect on the date of this Indenture.
“Global Security”, with respect to any series of Securities, means a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States that, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness.
“Guarantee” means, individually, any guarantee of payment of any series of Securities and the Company’s other Obligations under this Indenture by a Guarantor pursuant to the terms of the this Indenture and any indenture supplemental hereto with respect to such series, and, collectively, all such Guarantees.
“Guarantor” means any Person that incurs a Guarantee of a series of the Securities; provided that upon the release and discharge of such Person from its Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor.
3
“herein,” “hereof” and “hereunder,” and other words of similar import, refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“including” means including without limitation.
“Indebtedness” means, with respect to any Person, obligations of such Person for borrowed money, including without limitation, indebtedness for borrowed money evidenced by notes, bonds, debentures or similar instruments.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance with the terms hereof.
“Indirect Participant” means any entity that, with respect to DTC, clears through or maintains a direct or indirect, custodial relationship with a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act, who is not also a QIB.
“Interest Payment Date,” when used with respect to any installment of interest on a Security of a particular series, means the date specified herein, in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Issue Date” means, with respect to any series of Securities, the date on which the Securities of such series was first issued.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, Federal or foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Officer” means any member of the Board of Directors, the chief executive officer, the president, the chief financial officer, any vice president, the treasurer, any assistant treasurer, the secretary or any assistant secretary of the Company or any Guarantor, as the case may be.
“Officer’s Certificate” means a certificate, signed by any Officer of the Company or any Guarantor, as the case may be, that is delivered to the Trustee in accordance with the terms hereof. Each such certificate shall include the statements provided for in Section 13.06, if and to the extent required by the provisions thereof.
“Opinion of Counsel” means an opinion in writing of legal counsel, who may be an Officer or employee of or counsel for the Company or any Guarantor that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.06, if and to the extent required by the provisions thereof.
“Original Issue Discount Security” means a Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“Outstanding”, when used with reference to Securities of any series, subject to the provisions of Section 8.04, means, as of any particular time, all Securities of such series authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
4
(b) Securities, or portions thereof, for the payment or redemption of which funds in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent other than the Company, or, if the Company shall act as its own paying agent, shall have been set aside, segregated and held in trust by the Company for the Holders of such Securities, provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Company.
In determining whether the Holders of the requisite principal amount of Outstanding Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01 and the principal amount of a Security denominated in one or more currencies that shall be deemed to be Outstanding for such purposes shall be based on the Dollar Equivalent as determined by the Company on the date of original issuance of such Security, of the principal amount of such Security; provided, that any Securities of such series owned by the Company, or by any Affiliate of the Company, shall be considered as though not Outstanding.
“Participant”, with respect to the Depositary, Euroclear or Clearstream, means a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Periodic Offering” means an offering of Securities of a series from time to time, during which any or all of the specific terms of the Securities, including the rate or rates of interest, if any, thereon, the maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities in accordance with the terms of the relevant Supplemental Indenture.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government, any agency or political subdivision thereof or any other entity.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Private Placement Legend” means the legend set forth in Section 2.02(b) to be placed on all Restricted Securities issued under this Indenture or pursuant to a Board Resolution or an indenture supplemental hereto with respect to a series of Securities, except where specifically stated otherwise by the provisions of this Indenture, such Board Resolution or such supplemental indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
5
“Regulation S” means Regulation S promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
“Regulation S Global Security” means, with respect to any series of Securities, a Regulation S Temporary Global Security of such series, if required by Rule 903 of Regulation S, or a Regulation S Permanent Global Security of such series, as the case may be.
“Regulation S Permanent Global Security”, with respect to any series of Securities, means one or more permanent Global Securities, bearing the Private Placement Legend, that will be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Securities of such series initially sold or, if required by Rule 903 of Regulation S, of the Regulation S Temporary Global Security of such series upon expiration of the Distribution Compliance Period with respect to such series, as the case may be.
“Regulation S Temporary Global Security”, with respect to any series of Securities, means one or more temporary Global Securities, bearing the Private Placement Legend, and the Regulation S Temporary Global Security Legend issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Securities of such series initially sold, if required by Rule 903 of Regulation S.
“Regulation S Temporary Global Security Legend” means the legend set forth in Section 2.02(d), which is required to be placed on all Regulation S Temporary Global Securities issued under this Indenture.
“Responsible Officer” means any officer of the Trustee in its Corporate Trust Office, and also means any vice president, any assistant trust officer, any assistant vice president, any assistant treasurer, any assistant secretary or any other officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Security”, with respect to any series of Securities, means one or more Definitive Securities of such series bearing the Private Placement Legend issued under this Indenture.
“Restricted Global Security”, with respect to any series of Securities, means one or more Global Securities of such series bearing the Private Placement Legend, issued under this Indenture.
“Restricted Security”, with respect to any series of Securities, means a Security of such series, unless or until it has been (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act (or any similar provision then in force).
“Rule 144A” means Rule 144A promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
“Securities” means the securities authenticated and delivered under this Indenture.
“Securityholder,” “Holder,” “holder,” “holder of Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register” has the meaning set forth in Section 2.05(a).
“Security Registrar” has the meaning set forth in Section 2.05(a).
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
6
“Stated Maturity”, with respect to any Security, means the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the Holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).
“Subsidiary” of any Person means (1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or Persons performing similar functions) or (2) any partnership, joint venture limited liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is, in the case of clauses (1) and (2), at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
“Subsidiary Guarantor” means any Guarantor that is a Subsidiary of the Company.
“Successor Company” has the meaning set forth in Section 10.01.
“Successor Guarantor” has the meaning set forth in Section 10.02.
“Tax” means any tax, duty, assessment or other governmental charge of whatever nature (including related penalties, interest and any other liabilities related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of any of the foregoing). “Taxes” shall be construed to have a corresponding meaning.
“Taxing Jurisdiction” has the meaning set forth in Section 14.02.
“Trustee” means U.S. Bank National Association and, subject to the provisions of Article VII, shall include its successors and assigns. The term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect at the date of execution of this instrument subject to the provisions of Sections 9.01, 9.02, and 10.01.
“Unrestricted Definitive Security”, with respect to any series of Securities, means one or more Definitive Securities representing such series of Securities that do not bear and are not required to bear the Private Placement Legend, issued under this Indenture.
“Unrestricted Global Security”, with respect to any series of Securities, means one or more permanent Global Securities representing such series of Securities that do not bear and are not required to bear the Private Placement Legend, issued under this Indenture.
“Unrestricted Securities”, with respect to any series of Securities, means a Security (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act (or any similar provision then in force).
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ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officer’s Certificate of the Company, or established in one or more indentures supplemental hereto, with respect to the Securities of the series:
(1) the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, other Securities of that series);
(3) the date or dates on which the principal and premium, if any, of the Securities of the series is payable;
(4) the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any (including any procedures to vary or reset such rate or rates), and the basis upon which interest will be calculated if other than that of a 360 day year of twelve 30-day months;
(5) the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates, and the record date for the determination of Holders to whom interest is payable on any such Interest Payment Dates;
(6) any trustees, authenticating agents or paying agents with respect to such series, if different from those set forth in this Indenture;
(7) the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension or deferral;
(8) the period or periods within which, the price or prices at which and the terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions (including payments made in cash in anticipation of future sinking fund obligations) or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(10) the form of the Securities of the series including the form of the Trustee’s certificate of authentication for such series;
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(11) if other than denominations of $150,000 or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable;
(12) the Currency or Currencies in which payment of the principal of, premium, if any, and interest on, Securities of the series shall be payable;
(13) if the principal amount payable at the Stated Maturity of Securities of the series will not be determinable as of any one or more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the Stated Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined);
(14) the terms of any repurchase or remarketing rights;
(15) if the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the type of Global Security to be issued; the terms and conditions, if different from those contained in this Indenture, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities in definitive registered form; the Depositary for such Global Security or Securities; and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legends referred to in Section 2.02;
(16) whether the Securities of the series will be convertible into or exchangeable for other Securities, common shares or other securities of any kind of the Company or another obligor, and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the Holder or at the Company’s option, the conversion or exchange period, and any other provision in addition to or in lieu of those described herein;
(17) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) any additional restrictive covenants or Events of Default that will apply to the Securities of the series, or any changes to the restrictive covenants set forth in Article IV or the Events of Default set forth in Section 6.01 that will apply to the Securities of the series, which may consist of establishing different terms or provisions from those set forth in Article IV or Section 6.01 or eliminating any such restrictive covenant or Event of Default with respect to the Securities of the series;
(19) any provisions granting special rights to Holders when a specified event occurs;
(20) if the amount of principal or any premium or interest on Securities of a series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined;
(21) any special tax implications of the Securities, including provisions for Original Issue Discount Securities, if offered;
(22) whether and upon what terms Securities of a series may be defeased if different from the provisions set forth in this Indenture;
(23) with regard to the Securities of any series that do not bear interest, the dates for certain required reports to the Trustee;
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(24) whether the Securities of the series will be issued as Unrestricted Securities or Restricted Securities, and, if issued as Restricted Securities, the rule or regulation promulgated under the Securities Act in reliance on which they will be sold; and
(25) any and all additional, eliminated or changed terms that shall apply to the Securities of the series, including any terms that may be required by or advisable under United States laws or regulations (including the Securities Act and the rules and regulations promulgated thereunder) or advisable in connection with the marketing of Securities of that series.
(b) All Securities of any one series shall be substantially identical, except that Securities of any particular series may be issued at various times, in different denominations, with different currency of payments due thereunder, with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different dates from which such interest may accrue or on which such interest may be payable, and with different redemption dates, and except as may otherwise be provided in or pursuant to any such Board Resolution or in any supplemental indenture. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series. The terms of the Securities of any series may provide that such Securities shall be authenticated and delivered by the Trustee upon original issuance from time to time upon written order of persons designated in such Board Resolution or supplemental indenture and that such persons are authorized to determine, consistent with such Board Resolution or supplemental indenture, such terms and conditions of the Securities of such series.
Section 2.02. Form of Securities and Trustee’s Certificate.
(a) The Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor as set forth in an indenture supplemental hereto or as provided in a Board Resolution of the Company and as set forth in an Officer’s Certificate of the Company and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, any Board Resolution or any indenture supplemental hereto, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that series may be listed, or to conform to usage.
(b) Each Restricted Security (and all Restricted Securities issued in exchange therefor or substitution thereof) shall bear a Private Placement Legend in substantially the following form:
“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”). THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”
(c) To the extent required by the Depositary for particular series of Securities, each Global Security of such series shall bear legends in substantially the following forms:
“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.05(C) OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”
“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”
(d) To the extent required by the Depositary, each Regulation S Temporary Global Security shall bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY SECURITY SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS SECURITY. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS SECURITY.”
Section 2.03. Denominations; Provisions for Payment.
The Securities shall be issuable as registered Securities and in the denominations of $150,000 and integral multiples of $1,000 in excess thereof. The Securities of a particular series shall bear interest payable on the dates and at the
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rate specified as provided in Section 2.01 with respect to that series. The principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in Dollars except as otherwise specified pursuant to Section 2.01(a)(12), at the office or agency of the Company maintained for that purpose pursuant to Section 4.02. If any of the Securities of any series is no longer represented by a Global Security, payment of interest on Definitive Securities may, at the option of the Company, be made by (i) check mailed directly to Holders of such Securities at their addresses set forth in the Security Register or (ii) upon request of any Holder of at least $1,000,000 principal amount of such Securities, wire transfer to an account located in the United States maintained by the payee. Each Security shall be dated the date of its authentication. Unless otherwise specified with respect to a series of Securities in accordance with the provisions of Section 2.01(a)(4), interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Unless otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of any Securities pursuant to Section 2.01, the term “regular record date” as used in this Section 2.03 with respect to a series of Securities shall mean a date 15 days immediately preceding any Interest Payment Date. Subject to the provisions of this Section 2.03, each Security of a series delivered under this Indenture upon registration of transfer or in exchange for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Unless otherwise specified with respect to a series of Securities in accordance with the provisions of Section 2.01, any interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for such Security (“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant regular record date, and such Defaulted Interest shall be paid by the Company, at the rate provided for in such series of Securities and at its election, as provided in clause (1) or clause (2) below.
(1) The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee, in writing, of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee funds in an amount equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such funds when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1). Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee promptly shall notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid (or otherwise delivered in accordance with the procedures of DTC), to each Securityholder at his or her address as it appears in the Security Register, not less than ten days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed or otherwise delivered as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date and shall not be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange.
Section 2.04. Execution and Authentications.
The Securities shall be signed on behalf of the Company by any member of the Board of Directors of the Company or by any of its president, chief financial officer, vice president, secretary or treasurer of the Company. Signatures may be in the form of a manual or facsimile signature. In the case of Definitive Securities of any series, such signatures may be imprinted or otherwise reproduced on such Securities. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized signatory of the Trustee or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities, signed by an Officer (an “Authentication Order”), and the Trustee in accordance with such written order shall authenticate and deliver such Securities, without any further action by the Company hereunder. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and shall be fully protected in conclusively relying upon:
(a) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and if the terms and form of such Securities are established by an Officer’s Certificate pursuant to general authorization of the Board of Directors, such Officer’s Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officer’s Certificate delivered in accordance with Section 13.06 of this Indenture; and
(d) an Opinion of Counsel which shall state:
(1) that the form of such Securities has been established by a supplemental indenture or by or pursuant to a resolution of the Board of Directors and in conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in accordance with Section 2.01 and in conformity with the other provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and
(4) that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with.
The Trustee shall not be required, and shall have the right to decline, to authenticate and deliver any Securities pursuant to this Indenture if such Securities (a) will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture; (b) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; (c) if the Trustee, in good faith, determines that such action would expose the Trustee to personal liability to existing Holders, or (d) is in such a manner that is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of Section 2.01 and the preceding paragraph, in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with instructions or such other procedures acceptable to the Trustee as may be specified by or pursuant to a supplemental indenture or the written order of the Company delivered to the Trustee prior to the time of the first authentication of Securities of such series. With respect to Securities of a series subject to a Periodic Offering, the Trustee may conclusively rely, as to the authorization by the Company of any of such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the written order of the Company, Opinion of Counsel, Officer’s Certificate and other documents delivered pursuant to this Section 2.04 at or prior to the time of the first authentication of Securities of such series unless and until such written order, Opinion of Counsel, Officer’s Certificate or other documents have been superseded or revoked or expire by their terms.
Section 2.05. Transfer and Exchange.
(a) Registration of Transfer and Exchange. The Company shall keep, or cause to be kept, at its office or agency designated for such purpose as provided in Section 4.02, a register or registers (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as provided in this Article II and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and the transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”). If the Company fails to appoint or maintain another entity as Security Registrar, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Security Registrar.
To permit registrations of transfers and exchanges, the Company shall execute a new Security or Securities of the same series as the Security presented for a like aggregate principal amount and in authorized denominations and the Trustee shall authenticate and deliver such Security or Securities upon receipt of an Authentication Order. The Trustee shall not be required to register the transfer of or exchange any Security selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid Obligations of the Company evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Prior to such due presentment for the registration of a transfer of any Security, the Trustee, the Company, any paying agent and the Security Registrar may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Securities and for all other purposes, and none of the Trustee, the Company, the paying agent or the Security Registrar shall be affected by notice to the contrary. The Company is not required to transfer or exchange any Security of any series selected for redemption during a period of 15 days before mailing or otherwise delivering a notice of redemption of Securities of such series to be redeemed.
All certifications, certificates and opinions of counsel required to be submitted to the Trustee pursuant to this Section 2.05 to effect a registration of transfer or exchange may be submitted by facsimile or electronic transfer.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security or Securities other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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(b) Service Charge. No service charge shall be payable by a holder of a beneficial interest in a Global Security or by a Holder of a Definitive Security for any exchange or registration of transfer of Securities, or for any issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith (other than any such taxes or other governmental charge payable upon exchange or registration of transfer pursuant to Sections 2.06, 3.03(b) and 9.04).
(c) Transfer and Exchange of Global Securities. A Global Security may not be transferred except as a whole by the Depositary for a series of the Securities to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or to another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for a series of the Securities or a nominee of such successor Depositary. If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the provisions of Section 2.11 shall no longer be applicable to the Securities of such series. In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of Section 2.11 shall no longer apply to the Securities of such series. In either such event the Company will execute the Definitive Securities of such series, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series and subject to this Section 2.05 the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, if applicable, will authenticate and deliver such Definitive Securities in exchange for such Global Security. Upon the exchange of the Global Security of such series for such Definitive Securities of such series, the Global Security shall be canceled by the Trustee. Such Definitive Securities shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its Participants or Indirect Participants or otherwise, shall in writing instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Except as provided in Sections 2.06 and 2.07, a Global Security may not be exchanged for another Security other than as provided in this Section 2.05(c); however, beneficial interests in a Global Security may be transferred and exchanged as provided in Section 2.05(d) or (e). The provisions of this Section 2.05(c) are subject to Section 2.11.
(d) Transfer and Exchange of Beneficial Interests in the Global Securities. The transfer and exchange of beneficial interests in the Global Securities of a series shall be effected through the Depositary, in accordance with the provisions of this Indenture, any Board Resolution and any one or more indentures supplemental hereto, and the Applicable Procedures. Beneficial interests in the Restricted Global Securities of a series shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Securities also shall require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Security. Beneficial interests in any Restricted Global Security of a series may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Security of a series may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series. Subject to Section 2.05(e)(4), no written orders or instructions shall be required to be delivered to the Security Registrar to effect the transfers described in this Section 2.05(d)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Securities. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.05(d)(1) above, the transferor of such beneficial interest must deliver to the Security Registrar, as applicable, either:
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(A) (1) an order from a Participant or an Indirect Participant given to the Depositary in accordance with the relevant Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security of such series in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the relevant Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B) (1) an order from a Participant or an Indirect Participant given to the Depositary in accordance with the relevant Applicable Procedures directing the Depositary to cause to be issued a Definitive Security of such series in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Security Registrar containing information regarding the Person in whose name such Definitive Security shall be registered to effect the transfer or exchange referred to in (B)(1) above;
provided that in no event shall Definitive Securities of a series be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Security of such series prior to (y) the expiration of the relevant Distribution Compliance Period and (z) the receipt by the Security Registrar of any certificates identified by the Company or its counsel to be required pursuant to Rule 903 and Rule 904 under the Securities Act. Upon satisfaction of all the requirements for transfer and exchange of beneficial interests in Global Securities of a series contained in this Indenture, any Board Resolution, or one or more indentures supplemental hereto and the Securities of such series or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Security or Securities of such series pursuant to Section 2.05(h).
(3) Transfer of Beneficial Interests to Another Restricted Global Security. A beneficial interest in any Restricted Global Security of a series may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security of the same series if the transfer complies with the requirements of Section 2.05(d)(2) and the Security Registrar receives a completed certificate in the form of Exhibit A.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Security for Beneficial Interests in an Unrestricted Global Security. A beneficial interest in any Restricted Global Security of any series may be exchanged by any Holder thereof for a beneficial interest in an Unrestricted Global Security of such series or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series if the exchange or transfer complies with the requirements of Section 2.05(d)(2) above and the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Security Registrar and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global Security of such series has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall authenticate one or more Unrestricted Global Securities of such series in an aggregate principal amount equal to the aggregate principal amount of beneficial interests so transferred. Beneficial interests in an Unrestricted Global Security of a series cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Security of such series.
(e) Transfer or Exchange of Beneficial Interests for Definitive Securities.
(1) Beneficial Interests in Restricted Global Securities to Restricted Definitive Securities. If any holder of a beneficial interest in a Restricted Global Security of a series proposes to exchange such beneficial interest for a Restricted Definitive Security of such series or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Security of such series, then, upon receipt by the Security Registrar of a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and certificates and opinions of counsel, if applicable, the
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Trustee shall cause the aggregate principal amount of the applicable Restricted Global Security of such series to be reduced accordingly pursuant to Section 2.05(h), and the Company shall execute a Restricted Definitive Security of such series in the appropriate principal amount and, upon receipt of an Authentication Order pursuant to Section 2.04, the Trustee shall authenticate and deliver to the Person designated in the instructions such Restricted Definitive Security. Any Restricted Definitive Security of such series issued in exchange for a beneficial interest in a Restricted Global Security of such series pursuant to this Section 2.05(e) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary for such series and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Securities of such series to the Persons in whose names such Securities are so registered. Any Restricted Definitive Security of such series issued in exchange for a beneficial interest in a Restricted Global Security of such series pursuant to this Section 2.05(e)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Securities to Unrestricted Definitive Securities. A holder of a beneficial interest in a Restricted Global Security of a series may exchange such beneficial interest for an Unrestricted Definitive Security of such series or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such series only if the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Security Registrar and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Securities to Unrestricted Definitive Securities. If any holder of a beneficial interest in an Unrestricted Global Security of a series proposes to exchange such beneficial interest for an Unrestricted Definitive Security of such series or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such series, then, upon satisfaction of the conditions set forth in Section 2.05(d)(2), the Trustee shall cause the aggregate principal amount of the applicable Unrestricted Global Security of such series to be reduced accordingly pursuant to Section 2.05(h), and the Company shall execute an Unrestricted Definitive Security of such series in the appropriate principal amount and, upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall authenticate and deliver to the Person designated in the instructions such Unrestricted Definitive Security. Any Unrestricted Definitive Security issued in exchange for a beneficial interest pursuant to this Section 2.05(e)(3) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary for such series and the Participant or Indirect Participant. The Trustee shall deliver such Unrestricted Definitive Securities to the Persons in whose names such Securities are so registered. Any Unrestricted Definitive Security issued in exchange for a beneficial interest pursuant to this Section 2.05(e)(3) shall not bear the Private Placement Legend.
(4) Transfer or Exchange of Regulation S Temporary Global Securities. Notwithstanding the other provisions of this Section 2.05, a beneficial interest in the Regulation S Temporary Global Security of a series may not be (A) exchanged for a Definitive Security of such series prior to (y) the expiration of the Distribution Compliance Period with respect to such series (unless such exchange is effected by the Company, does not require an investment decision on the part of the Holder thereof and does not violate the provisions of Regulation S) and (z) the receipt by the Security Registrar of any certificates identified by the Company or its counsel to be required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a U.S. person (as such term is defined in Regulation S) or for the account or benefit of a U.S. person (other than an initial purchaser of such Regulation S Temporary Global Security) or a Person who takes delivery thereof in the form of a Definitive Security of such series prior to the events set forth in clause (A) above or unless the transfer is pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or 904.
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(f) Transfer and Exchange of Definitive Securities for Beneficial Interests.
(1) Restricted Definitive Securities to Beneficial Interests in Restricted Global Securities. If any Holder of a Restricted Definitive Security of a series proposes to exchange such Security for a beneficial interest in a Restricted Global Security of such series or to transfer such Restricted Definitive Securities of such series to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Security of such series, then, upon receipt by the Trustee of the following documentation:
(A) if the Holder of such Restricted Definitive Security of such series proposes to exchange such Security for a beneficial interest in a Restricted Global Security of such series, a completed certificate from such Holder in the form of Exhibit B; or
(B) if such Restricted Definitive Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act or to a non-U.S. person in an offshore transaction in accordance with Rule 903 or 904 under the Securities Act, a completed certificate to that effect set forth in Exhibit A, the Trustee shall cancel the Restricted Definitive Security of such series, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Security of such series and, in the case of clause (B) above, the 144A Global Security of such series or the Regulation S Global Security of such series as applicable.
(2) Restricted Definitive Securities to Beneficial Interests in Unrestricted Global Securities. A Holder of a Restricted Definitive Security of a series may exchange such Security for a beneficial interest in an Unrestricted Global Security of such series or transfer such Restricted Definitive Security of such series to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series only if the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Security Registrar and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.05(f)(2), the Trustee shall cancel the Restricted Definitive Securities of such series so transferred or exchanged and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Security of such series.
(3) Unrestricted Definitive Securities to Beneficial Interests in Unrestricted Global Securities. A Holder of an Unrestricted Definitive Security of a series may exchange such Security for a beneficial interest in an Unrestricted Global Security of such series or transfer such Definitive Securities of such series to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series at any time. Upon receipt of a written request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Security and increase or cause or be increased the aggregate principal amount of one of the Unrestricted Global Securities of such series. If any such exchange or transfer from a Definitive Security of a series to a beneficial interest is effected pursuant to subparagraphs (2) or (3) of this Section 2.05(f) at a time when an Unrestricted Global Security of such series has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall authenticate one or more Unrestricted Global Securities of such series in an aggregate principal amount equal to the principal amount of Definitive Securities of such series so transferred.
(g) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon written request by a Holder of Definitive Securities of a series and such Holder’s compliance with the provisions of this Section 2.05(g), the Trustee shall register the transfer or exchange of Definitive Securities of such series pursuant to the provisions of Section 2.05(a). In addition to the requirements set forth in Section 2.05(a), the requesting Holder shall provide any additional certifications, documents, and information, as applicable, required pursuant to the following provisions of this Section 2.05(g).
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(1) Restricted Definitive Securities to Restricted Definitive Securities. Any Restricted Definitive Security of a series may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Security of such series if the Trustee receives a completed certificate in the form of Exhibit A, including the certifications, certificates and opinions of counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Securities to Unrestricted Definitive Securities. Any Restricted Definitive Security of a series may be exchanged by the Holder thereof for an Unrestricted Definitive Security of such series or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Security of such series if the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Trustee and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Securities to Unrestricted Definitive Securities. A Holder of Unrestricted Definitive Securities of a series may transfer such Securities to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such series in accordance with subsection 2.05(a). Upon receipt of a request to register such a transfer, the Security Registrar shall register the Unrestricted Definitive Securities of such series pursuant to the instructions from the Holder thereof.
(h) Cancellation and/or Adjustment of Global Securities. At such time as all beneficial interests in a particular Global Security of a series have been exchanged for Definitive Securities of such series or a particular Global Security of a series has been redeemed, repurchased or cancelled in whole and not in part, each such Global Security of such series shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.08. At any time prior to such cancellation, if any beneficial interest in a Global Security of such series is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security of such series or for Definitive Securities of such series, the principal amount of Securities of such series represented by such Global Security shall be reduced accordingly and an endorsement may be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security of such series, such other Global Security shall be increased accordingly and an endorsement may be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) No Exchange or Transfer. The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before the day of the mailing (or otherwise delivery in accordance with the procedures of DTC) of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of business on the day of such mailing or other delivery, (ii) to register the transfer of or exchange any Securities of any series or portions thereof called for redemption, nor (iii) to register the transfer of or exchange a Security of any series between the applicable record date pursuant to Section 2.01 (a)(5) and the next succeeding Interest Payment Date.
Section 2.06. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute temporary Securities (printed, lithographed or typewritten) of any authorized denomination and the Trustee shall authenticate and deliver such Securities. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge to the Holders, at the office or agency of the Company maintained pursuant to Section 4.02 for the purpose of exchanges of Securities of such
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series, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from the Company. Until so exchanged, temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute a new Security of the same series, bearing a number not contemporaneously outstanding in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen and upon the Company’s written request the Trustee (subject to the next succeeding sentence) shall authenticate and deliver, such Security. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any Officer. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company, instead of issuing a substitute Security, may pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this Section 2.07 shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer, if surrendered to the Company or any paying agent, shall be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. Upon the written request of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the Holders of the Securities, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the Holders of the Securities.
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Section 2.10. Authenticating Agent.
So long as any of the Securities of any series remain Outstanding, there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint. The Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series, including Securities issued upon exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by Federal or State authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately. Any Authenticating Agent may resign at any time by giving written notice of resignation to the Trustee and to the Company. The Trustee at any time may, and upon written request by the Company shall, terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11. Global Securities.
(a) General. If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute one or more Global Securities that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee and (iii) shall be delivered to the Trustee as custodian for the Depositary or otherwise delivered pursuant to the Depositary’s instructions and the Trustee in accordance with Section 2.04 shall authenticate such Global Security or Global Securities.
(b) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and the “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions” and “Customer Handbook” of Clearstream, respectively, in effect at the relevant time shall be applicable to transfers of beneficial interests in the Regulation S Global Securities of such series that are held by Participants through Euroclear or Clearstream.
Section 2.12. CUSIP Numbers.
The Company in issuing the Securities of a series may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee, in writing, of any change in the “CUSIP” numbers.
Section 2.13. Securities Denominated in Foreign Currencies.
Except as otherwise specified pursuant to Section 2.01 for Securities of any series, payment of the principal of, premium, if any, and interest on, Securities of such series denominated in any Foreign Currency will be made in such Foreign Currency by one or more paying agents appointed by the Company (each, a “Foreign Paying Agent”).
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In the event any Foreign Currency or Currencies in which any payment with respect to any series of Securities may be made ceases to be a freely convertible Currency on United States Currency markets, for any date thereafter on which payment of principal of, premium, if any, or interest on the Securities of a series is due, the Company shall select the Currency of payment for use on such date, all as provided in the Securities of such series, in a Board Resolution or in one or more indentures supplemental hereto. In such event, the Company shall notify the Foreign Paying Agent of the Currency which it has selected to constitute the funds necessary to meet the Company’s Obligations on such payment date and of the amount of such Currency to be paid. Such amount shall be determined as provided in the Securities of such series, in a Board Resolution or in one or more indentures supplemental hereto. The payment with respect to such payment date shall be deposited with the Foreign Paying Agent by the Company solely in the Currency so selected.
Section 2.14. Wire Transfers.
Notwithstanding any other provision to the contrary in this Indenture, the Company may make any payment required to be deposited with the Trustee on account of principal of, premium, if any, or interest on, the Securities by any method of wire transfer to an account designated in writing by the Trustee such that funds are available on or before the date such payment is to be made to the Holders of the Securities in accordance with the terms hereof.
Section 2.15. Designated Currency.
The Company may provide pursuant to Section 2.01 for Securities of any series that:
(a) the obligation, if any, of the Company to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or Dollars (the “Designated Currency”) as may be specified pursuant to Section 2.01(a)(12) is of the essence and agree that, to the fullest extent possible under applicable law, judgments in respect of Securities of such series shall be given in the Designated Currency;
(b) the obligation of the Company to make payments in the Designated Currency of the principal of, premium, if any, and interest on such Securities shall be discharged, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), only to the extent of the amount in the Designated Currency that the Securityholder receiving such payment, in accordance with normal banking procedures, may purchase with the amount paid in such other Currency after any premium and cost of exchange on the business day in the country of issue of the Designated Currency or in the international banking community immediately following the day on which such Securityholder receives such payment;
(c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and
(d) any obligation of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01. Redemption.
The Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 or 14.01.
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Section 3.02. Notice of Redemption; Partial Redemption.
(a) If the Company desires to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series, the Company shall, or shall instruct the Trustee in writing to, give notice of such redemption to Holders of the Securities of such series to be redeemed by mailing (or otherwise delivery in accordance with the procedures of DTC), first class postage prepaid, a notice of such redemption not less than 10 days and not more than 60 days before the date fixed for redemption of that series to such Holders at their last addresses as they shall appear upon the Security Register (unless a shorter period is specified in the Securities to be redeemed). Any notice that is mailed (or otherwise delivered) in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered Holder receives the notice. Notices of redemption may be conditioned upon the occurrence of one or more subsequent events specified in the notice. The Trustee shall not have any duty to determine or verify the determination of whether any one or more of the conditions precedent have been satisfied. In any case, failure duly to give such notice to the Holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, the CUSIP, ISIN or other similar numbers, if any, assigned to such Securities, and shall state that: (i) payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company maintained for such purpose, or, if none, at the Corporate Trust Office of the Trustee, upon presentation and surrender of such Securities; (ii) interest accrued to the date fixed for redemption will be paid as specified in said notice; (iii) from and after said date interest will cease to accrue; (iv) the redemption is for a sinking fund, if such is the case; and (v) if in connection with a redemption of any series of Securities pursuant to the optional redemption terms set forth in the supplemental indenture or Board Resolution governing such series of Securities, as applicable, any condition to such redemption. If less than all the Securities of a series are to be redeemed, the notice to the Holders of Securities of that series to be redeemed in whole or in part shall specify the particular Securities to be so redeemed. In case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If all or less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ written notice (unless a shorter period shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed. If less than all the Securities are to be redeemed, the Trustee thereupon shall select from Securities of such series Outstanding not previously called for redemption, in accordance with DTC’s procedures (in such manner as complies with applicable legal and stock exchange requirements, if any) and that may provide for the selection of a portion or portions (equal to $150,000 or any integral multiples of $1,000 in excess thereof) of the principal amount of such Securities of such series of a denomination larger than $150,000, the Securities of such series to be redeemed. The Trustee promptly shall notify the Company in writing of the numbers of the Securities of such series to be redeemed, in whole or in part.
(c) A partial redemption of the Securities of the series to be redeemed may be selected pro rata or by lot in accordance with the applicable procedures of the Depositary or by such method as specified at the direction of the Issuer (equal to the minimum authorized denomination for such Securities or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than the minimum authorized denomination for such Securities.
The Company, if and whenever it shall so elect, by delivery of instructions signed on its behalf by any of its Officers, may instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section 3.02, such notice to be in the name of the Company or its own name, as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section 3.02.
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Section 3.03. Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, in each case as established pursuant to Section 2.01 or 14.01. Interest on such Securities or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, such Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall be payable to the registered Holder at the close of business on the applicable record date pursuant to Section 2.01).
(b) Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute a new Security of the same series and tenor of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented and the Trustee shall authenticate, and the office or agency where the Security is presented shall deliver to the Holder thereof, at the expense of the Company, such Security; except that if a Global Security is so surrendered, the Company shall execute a new Global Security of like tenor in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered and, upon receipt of an Officer’s Certificate requesting authentication and delivery, the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, such Global Security.
Section 3.04. Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any Securities previously called for redemption) and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 3.06. Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by payment of cash in the Currency in which the Securities of such series are denominated (except as provided pursuant to Section 2.01), the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit. Together with such Officer’s Certificate, the Company will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
CERTAIN COVENANTS
The following covenants shall apply to the Securities, except with respect to any series of Securities for which the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series expressly provides that any such covenant shall not apply to such series of Securities:
Section 4.01. Payment of Principal, Premium and Interest.
The Company will pay or cause to be paid the principal of, premium, if any, and interest on the Securities of a series at the time and place and in the manner provided herein and established with respect to such Securities. Principal of, premium, if any and interest shall be considered paid on the date due if the paying agent, if other than one of the Company or a Subsidiary, holds as of 10:00 a.m., New York City time, on the date due, money deposited by the Company in immediately available funds and designated for and sufficient to pay the principal of, or premium, if any, and interest then due.
Section 4.02. Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company will maintain for such series an office or agency where Securities of such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be given or served. Such designation will continue with respect to each office or agency until the Company, by written notice signed by any Officer and delivered to the Trustee, shall designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands. Unless otherwise specified in accordance with Section 2.01 with respect to a series of Securities, the Company initially designates the Corporate Trust Office of the Trustee as the office to be maintained by it for each such purpose.
Section 4.03. Paying Agents; Security Registrar
(a) The Company may appoint one or more paying agents, other than the Trustee, for all or any series of the Securities. If the Company fails to appoint or maintain another entity as paying agent, the Trustee shall act as such. The Company, any Guarantor or any of their Subsidiaries may act as paying agent. The Company hereby appoints the Trustee as the initial paying agent and the initial Security Registrar.
(b) The Company shall require each paying agent other than the Trustee to agree in writing that the paying agent will hold in trust for the benefit of Securityholders or the Trustee all funds held by the paying agent for the payment of principal, premium, if any, or interest on the Securities, and will promptly notify the Trustee, in writing, of any default by the Company in making any such payment. While any such default continues, the Trustee may require a paying agent to pay all funds held by it to the Trustee. The Company at any time may require a paying agent to pay all funds held by it to the Trustee. Upon payment over to the Trustee, the paying agent (if other than the Company, a Guarantor or any of their Subsidiaries) shall have no further liability for the funds. If the Company, any Guarantor or any of their Subsidiaries acts as paying agent, it shall segregate and hold in a separate trust fund for the benefit of the Securityholders all funds held by it as paying agent.
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(c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold funds in trust as provided in this Section 4.03 is subject to the provisions of Section 11.06, and (ii) the Company at any time, for the purpose of obtaining the satisfaction and discharge or defeasance of this Indenture or for any other purpose, may pay, or direct any paying agent to pay, to the Trustee all funds held in trust by the Company or such paying agent, such funds to be held by the Trustee upon the same terms and conditions as those upon which such funds were held by the Company or such paying agent. Upon such payment by any paying agent to the Trustee, such paying agent shall be released from all further liability with respect to such funds.
Section 4.04. Statement by Officers as to Default.
So long as any of the Securities remain outstanding, the Company will furnish to the Trustee within 120 days after the end of each fiscal year a brief certificate (which need not comply with Section 13.06) executed by the principal executive, financial or accounting officer of the Company or any member of the Board of Directors of the Company indicating whether the signers of such certificate know of any Default under this Indenture that occurred during the previous year. Such certificate need not include a reference to any Default that has been fully cured prior to the date as of which such certificate speaks.
The Company shall provide written notice to the Trustee within 30 days of the occurrence of any event, act or condition that would constitute a Default, describing the status of such Event of Default and describing what action the Company is taking or proposing to take with respect thereto.
Section 4.05. Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or to fill a vacancy in the office of the Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall be at all times a Trustee hereunder.
Section 4.06. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.01 in respect of the Securities of such series and a continuing Event of Default in the payment of interest or premium on, or principal of the Securities of such series, the Company may, with respect to Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to this Article IV and any additional covenants added pursuant to Section 2.01 or Article IX for the benefit of the Holders of such series, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall by written notice to the Company and the Trustee, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the Obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE V.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) semi-annually at least seven Business Days before each Interest Payment Date for a series of Securities (and in all events at intervals of not more than six months) a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of each series of Securities as of such date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the
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Trustee by the Company and (b) at such other times as the Trustee may require in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02. Preservation of Information; Communications with Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the Securities.
Section 5.03. Reports by the Company.
(a) So long as any Securities are outstanding, the Company shall file with the Trustee, within 15 days after the Company files with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. The Company shall be deemed to have complied with the previous sentence to the extent that such information, documents and reports are filed with the Commission via EDGAR (or any successor electronic delivery procedure) or posted on the Company’s website; provided, that the Trustee shall have no obligation whatsoever to determine whether or not such documents or reports have been so filed.
(b) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 5.04. Reports by the Trustee.
(a) Any Trustee’s report required under Section 313(a) of the Trust Indenture Act shall be transmitted on or before March 15 in each year following the date hereof (commencing in 2015), so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.
(b) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with any stock exchange upon which any Securities are listed and with the Commission. The Company agrees to promptly notify the Trustee, in writing, when any Securities become listed on any stock exchange or delisted therefrom.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default.
(a) Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing, except with respect to any series of Securities for which the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series expressly provides that any such Event of Default shall not apply to such series of Securities:
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(1) a default in any payment of interest or Additional Amounts, if any, on any of the Securities of such series as and when the same shall become due, which continues for 30 days;
(2) a default in the payment of principal of or premium, if any, on any of the Securities of such series when due at its stated maturity date, upon optional redemption or otherwise;
(3) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series;
(4) a failure by the Company or any Guarantor to comply with their other agreements contained in this Indenture or any indenture supplemental hereto with respect to such series (other than a default or breach that is specifically dealt with elsewhere in this Section 6.01 or in such supplemental indenture), which continues for a period of 90 days after written notice thereof is given to the Company by the Trustee or to the Company and the Trustee by the holders of not less than 25% in principal amount of the Outstanding Securities of such series;
(5) a default under any debt for money borrowed by the Company or any Guarantor that results in acceleration of the maturity of such debt, or failure to pay any such debt within any applicable grace period after final stated maturity, in an aggregate amount of the greater of (a) $150.0 million, or (b) 3.0% of Consolidated Total Assets, or in each case, its foreign currency equivalent, at the time without such debt having been discharged or acceleration having been rescinded or annulled;
(6) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or any Significant Subsidiary (or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its subsidiaries) would constitute a Significant Subsidiary) in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or such Significant Subsidiary or for any substantial part of its property or ordering the winding up or liquidation of its affairs (or any similar relief is granted under any foreign laws), and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days;
(7) the Company or any Significant Subsidiary (or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its subsidiaries) would constitute a Significant Subsidiary) shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, seek court protection, reorganization or other relief with respect of its debts under any law, consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment of or taking possession by a receiver, liquidator, examiner, assignee, custodian, trustee or sequestrator (or similar official) of the Company or such Significant Subsidiary or for any substantial part of its property, or make any general assignment for the benefit of creditors (or takes any comparable action under any foreign laws relating to bankruptcy or insolvency);
(8) any guarantee of a Guarantor ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared null and void in a judicial proceeding or any Guarantor denies or disaffirms its obligations under this Indenture or its guarantee; and
(9) any other Event of Default provided in the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series.
(b) The foregoing will constitute an Event of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
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(c) In the case of an Event of Default specified in Section 6.01(a)(6) or Section 6.01(a)(7) occurs, the principal of and premium, if any, and accrued and unpaid interest on all Outstanding Securities will become due and payable immediately without further action or notice. If any other Event of Default as described herein shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of a series may declare, by notice to the Company in writing (and to the Trustee, if given by Holders of such Securities) specifying the Event of Default, to be immediately due and payable the principal amount of all such Securities then Outstanding, plus premium, if any, and accrued and unpaid interest to the date of acceleration.
(d) At any time after the principal of the Securities of that series shall have been so declared due and payable, and before any judgment or decree for the payment of the amount due shall have been obtained or entered as hereinafter provided, the Holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has or has caused to be paid or deposited with the Trustee an amount sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of and premium, if any, on any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest, at the rate expressed in the Securities of that series to the date of such payment or deposit), and (ii) any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06. No such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(e) The Trustee shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the Security Register, notice by mail of all defaults actually known to a Responsible Officer that have occurred and are continuing with respect to such series, such notice to be transmitted within 90 days after it becomes actually known to a Responsible Officer of the Trustee; provided that, except in the case of default in the payment of the principal of, premium, if any, or interest on any of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee may withhold such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers determines in good faith that the withholding of such notice is not opposed to the interests of the Securityholders of such series (it being understood that the Trustee does not have an affirmative duty to determine whether any direction is prejudicial to any Securityholder). Prior to taking any action under the Indenture, the Trustee will be entitled to, and if requested, be provided, indemnification or security satisfactory to it against any loss, liability, cost or expense caused by taking or not taking such action.
Section 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default shall have continued for a period of 30 days, or (ii) in case it shall default in the payment of the principal of, or premium, if any, on any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of that series, the whole amount that then shall have been become due and payable on all such Securities for principal, premium, if any, or interest, or both, with interest upon the overdue principal, premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the amounts so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any Guarantor and collect the amounts adjudged or decreed to be payable in the manner provided by law out of the property of the Company or such Guarantor, wherever situated.
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(c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, examinership, composition or judicial proceedings affecting the Company or any Guarantor or its respective creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted by the court and, except as otherwise provided by law, shall be entitled to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders of Securities of such series allowed for the entire amount due and payable by the Company under this Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any funds or other property payable or deliverable on any such claim, and to distribute the same in accordance with Section 6.03. Any receiver, assignee, examiner or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto. Any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the Holders of the Securities of such series.
In case of an Event of Default, the Trustee in its discretion may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03. Application of Funds Collected.
Any funds collected by the Trustee pursuant to this Article VI with respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such funds on account of principal, premium, if any, or interest, upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all amounts payable to the Trustee, acting in all of its capacities under this Indenture;
SECOND: To the payment of the amounts then due and unpaid upon Securities of such series for principal, premium, if any, and interest, in respect of which or for the benefit of which such funds have been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and
THIRD: To the Company.
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Section 6.04. Limitation on Suits.
If an Event of Default occurs and is continuing with respect to any series of Securities, the Trustee, in conformity with its duties under this Indenture, shall exercise all rights or powers under this Indenture at the request or direction of any of the Holders of such Securities, provided, that such Holders provide the Trustee with an indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no Holder of Securities of such Series may pursue any remedy with respect to this Indenture or such Securities unless (i) such Holder previously notified the Trustee that an Event of Default is continuing; (ii) Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series requested the Trustee to pursue the remedy; (iii) the requesting Holders of Securities of such Series offered the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense; (iv) the Trustee has not complied with such Holder’s request within 60 days after the receipt of the request and the offer of security or indemnity; and (v) the Holders of a majority in principal amount of the Outstanding Securities of such series have not given the Trustee a direction inconsistent with the request within the 60-day period.
Notwithstanding anything contained herein to the contrary, any other provisions of this Indenture, the right of any Holder of any Security to receive payment of the principal of, and premium, if any, and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such Holder. By accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and Holder of every Security of such series with every other such taker and Holder and the Trustee, that no one or more Holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the Holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of such series. For the protection and enforcement of the provisions of this Section 6.04, each Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 6.05. Rights and Remedies Cumulative; Delay or Omission not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies given by this Article VI to the Trustee or to the Securityholders, to the extent permitted by law, shall be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the Holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing shall impair any such right or power, or shall be construed to be a waiver of any such default or on acquiescence therein. Subject to the provisions of Section 6.04, every power and remedy given by this Article VI or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06. Control by Securityholders.
The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to such series. The Trustee may, however, refuse to follow any direction that conflicts with law or this Indenture. In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of such series, each representing less than a majority in aggregate principal amount of the outstanding Securities of such series, the Trustee, in its sole discretion, may determine what action, if any, shall be taken and the Trustee may, in its sole discretion, take other actions.
The Holders of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, on behalf of the Holders of all of the Securities of such series may waive any past Default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a Default (1) in the payment of the principal of, premium, if any, or interest on, any of the Securities of that series as and when the same
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shall become due by the terms of such Securities otherwise than by acceleration and (2) in respect of a covenant or provision of this Indenture that cannot be modified or amended without the consent of the Holder of each Security of such series). Upon any such waiver, the Default covered thereby shall be deemed to be cured for every purpose of this Indenture and the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.07. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Securities by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.07 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of, premium, if any, or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
Section 6.08. Waiver of Usury, Stay or Extension of Laws.
Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities of Trustee.
(a) In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series that may have occurred, the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and in the absence of gross negligence or willful misconduct on the part of the Trustee, the Trustee with respect to the Securities of such series may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such
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certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical computations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officer of the Trustee, unless it shall be proved, in a final and non-appealable decision by a court of competent jurisdiction, that the Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture;
(4) whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;
(5) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any Security Registrar with respect to the Securities; and
(6) none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02. Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties, even if it contains errors or is later deemed not authentic.
(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company by an Officer (unless other evidence in respect thereof is specifically prescribed herein).
(c) The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon, and the Trustee shall not be responsible for the content of any Opinion of Counsel in connection with this Indenture, whether delivered to it or on its behalf.
(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses, claims, loss and liabilities that may be incurred therein or thereby.
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(e) The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, provided, however, that the Trustee’s conduct does not constitute gross negligence.
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other papers or documents, but the Trustee, in its discretion, may make such further inquiry into such matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable notice and at reasonable times to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee.
(h) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(k) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether such Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l) The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Securities, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been received by the Trustee at its Corporate Trust Office by the Company or by any Holder of the Securities, and such notice references the Securities and this Indenture.
(m) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; nuclear or natural catastrophes; earthquakes, fires; floods, wars; civil or military disturbances; riots; sabotage; pandemics; epidemics; recognized public emergencies; quarantine restrictions; loss or malfunction of utilities; hacking; cyber-attacks or other infiltration of the Trustee’s technological infrastructure exceeding authorized access; riots; interruptions; loss or malfunctions of utilities or , computer (hardware or software) or communications services, accidents; labor disputes; strikes; work stoppages; accidents; acts of civil or military authority or governmental actions (it being understood that the Trustee shall use its best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances).
(n) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
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(o) It shall not be the duty of the Trustee to see that any duties or obligations imposed herein upon the Company or other persons are performed, and the Trustee shall not be liable or responsible for the failure of the Company or such other persons to perform any act required of them by this Indenture.
(p) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(q) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
Section 7.03. Trustee not Responsible for Recitals or Issuance of Securities.
(a) The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of any funds paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or for the use or application of any funds received by any paying agent other than the Trustee.
Section 7.04. May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying agent or Security Registrar. However, the Trustee is subject to Sections 7.09 and 7.13.
Section 7.05. Funds Held in Trust.
Subject to the provisions of Section 11.06, all funds received by the Trustee, until used or applied as herein provided, shall be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any funds received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06. Compensation, Reimbursement and Indemnification.
(a) The Company shall pay to the Trustee, and the Trustee shall be entitled to be paid, such compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), as the Company and the Trustee from time to time may agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee. Except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses and disbursements incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense or disbursement as may arise from its own gross negligence or willful misconduct. The Company and each Guarantor, jointly and severally, shall indemnify the Trustee (and its officers, agents, directors and employees) for, and shall hold it harmless against, any and all loss, liability, claim, damage or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred without gross negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust or in any other capacity hereunder, including the costs and expenses of defending itself against any claim of liability (whether asserted by the Company, any Holder or any other Person) in the premises or enforcing this Indenture, including this Section 7.06. The Trustee shall notify the Company and each applicable Guarantor
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promptly of any claim for which it may seek indemnity. Failure by the Trustee so to notify the Company and each applicable Guarantor shall not relieve the Company or any Guarantor of its obligations hereunder, except to the extent that the Company or any Guarantor has been prejudiced by such failure. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent shall not be unreasonably withheld or delayed.
(b) The obligations of the Company and the Guarantors under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses and disbursements shall: (i) be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities; and (ii) survive the termination of this Indenture and earlier resignation or removal of the Trustee.
Section 7.07. Reliance on Officer’s Certificate and other Documents.
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed), in the absence of gross negligence or willful misconduct on the part of the Trustee, may be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States or any State or Territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal, State, Territorial, or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 7.09 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Affiliate of the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10. Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company no later than 30 days prior to the proposed date of resignation and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the retiring Trustee resigns, the retiring Trustee, at the expense of the Company, or the Company may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide Holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any one of the following shall occur, the Company may remove the Trustee with respect to all or any series of Securities and appoint a successor trustee, or, unless the Trustee’s duty to resign is stayed as provided herein, any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, on behalf of that Holder and all others similarly situated, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee:
(1) the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation.
If an instrument of acceptance by a successor trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding at any time may remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor trustee for such series with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section 7.10 may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. Upon the written request of the Company or the successor trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall assign, transfer and deliver to such successor trustee all property and funds held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable
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to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder. Upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, and such retiring Trustee shall have no further responsibility with respect to the Securities of that or those series to which the appointment of such successor trustee relates for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture. Each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates. Upon the written request of the Company or any successor trustee, such retiring Trustee shall assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and funds held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company may execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in Section 7.11 (a) or (b), as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article VII.
(e) Upon acceptance of appointment by a successor trustee as provided in this Section 7.11, the successor trustee shall cause a notice of its succession to be transmitted to Securityholders.
Section 7.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation or other entity shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor trustee had itself authenticated such Securities.
Section 7.13. Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the Holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such majority or specified percentage of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such Holders of Securities of that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company, at its option, as evidenced by an Officer’s Certificate, may fix in advance a record date for such series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03. Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
None of the Company, the Trustee, any paying agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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Section 8.04. Certain Securities Owned by Company Disregarded.
In determining whether the Holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent of waiver under this Indenture, the Securities of that series that are owned by the Company, any Guarantor or any other obligor on the Securities of that series or by an Affiliate of the Company or any Guarantor shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities of such series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not an Affiliate. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Securities of a particular series, if any known by the Company or a Guarantor to be owned or held by or for the account of any of the above described Persons and, subject to Sections 7.01 and 7.02, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities of such particular series not listed therein are Outstanding for the purpose of any such determination.
Section 8.05. Actions Binding on Future Securityholders.
At any time prior to the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any Holder of a Security of that series that is shown by the evidence to be included in the Securities the Holders of which have consented to such action, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, may revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the Holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this Indenture, the Company, the Guarantors and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, to correct any mistake, to correct or supplement any provision in this Indenture that may be defective or inconsistent with any other provision in this Indenture, or to make other provisions in regard to matters or questions arising under this Indenture;
(b) to evidence the succession of another Person to the Company or a Guarantor and the assumption by any such successor of the covenants, agreements, and obligations in this Indenture and in the Securities of a series in accordance with this Indenture;
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(c) to surrender any of the Company’s or the Guarantors’ rights or powers under this Indenture or add to the Company’s or Guarantors’ covenants further covenants for the protection of the holders of all or either series of Securities;
(d) to add any additional Events of Default for the benefit of the holders of all of any series of Securities;
(e) to add Guarantors or co-obligors with respect to the Securities, or to release Guarantors from the guarantees of the Securities in accordance with the terms of this Indenture and the Securities;
(f) to add collateral security with respect to the Securities of any series;
(g) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(h) make any change that does not adversely affect the rights of any holder of Securities;
(i) to add or appoint a successor or separate Trustee or other agent;
(j) to comply with any requirement in connection with the qualification of this Indenture under the Trust Indenture Act; or
(k) to conform any provision in this Indenture to the “Description of notes” (or similar) section of any prospectus prepared in connection with the issuance of any particular series of Securities, provided, that such amendment only affects such series, as set forth in the Officer’s Certificate.
Upon the written request of the Company and upon receipt by a Responsible Officer of the Trustee of the documents described in Section 9.05, the Trustee shall join with the Company and the Guarantors in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Company, the Guarantors and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Securities of a series at the time Outstanding affected by such supplemental indenture or indentures, the Company, the Guarantors and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the Holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture, without the consent of the Holders of each Security of such series then Outstanding and affected thereby, shall (i) change the stated maturity of the principal of, or installment of interest on, any Security of such series; (ii) reduce the principal amount of, or the rate of interest on, any Security of such series; (iii) reduce any premium, if any, payable on the redemption or required repurchase of any Security of such series or change the date on which any Securities of such series may be redeemed or required to be repurchased; (iv) change the coin or currency in which the principal of, premium, if any, or interest on any Securities of such series is payable; (v) impair the right of any Holder of any Security of such series to institute suit for the enforcement of any payment of principal and interest (including Additional Amounts, if any) on such Holder’s Securities on or after the stated maturity of any Securities of such series; (vi) reduce the percentage in principal amount of the Outstanding Securities of such series, the consent of whose Holders is required in order to amend, modify or supplement this
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Indenture; (vii) modify any of the provisions of Section 4.06 or Section 6.06, except to increase any percentage of consents required or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; (viii) make any change to the provisions of Article XV of this Indenture in any manner adverse to the Holders of such Securities; (ix) make any change to the provisions of Article XIV of this Indenture that adversely affects the right of any Holder of such Securities in any material respect or amend the terms of such Securities in a way that would result in a loss of an exemption from any of the Taxes described thereunder or any exemption from any obligation to withhold or deduct Taxes so described thereunder unless the payor agrees to pay Additional Amounts, if any, in respect thereof; or (x) modify any of the provisions of this Section 9.02.
A supplemental indenture that changes or eliminates any covenant, Event of Default or other provision of this Indenture that has been expressly included solely for the benefit of one or more particular series of Securities, if any, or which modifies the rights of the Holders of Securities of such series with respect to such covenant, Event of Default or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of Securityholders of a series affected thereby under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company, the Guarantors and the Trustee of any supplemental indenture pursuant to the provisions of this Section 9.02, the Company shall mail or caused to be mailed (or otherwise deliver in accordance with the procedures of DTC) a notice thereof by first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the Security Register, setting forth in general terms the substance of such supplemental indenture. Any failure of the Company to mail or otherwise deliver such notice, or any defect therein, shall not in any way impair or affect the validity of any such supplemental indenture.
Section 9.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX or Section 10.01, this Indenture shall be and be deemed to be modified and amended with respect to such series in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantors and the Holders of Securities of the series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04. Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture and authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01 may bear a notation in form approved by the Company, provided such form meets the requirements of any exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05. Execution of Supplemental Indentures.
Upon the written request of the Company and, if applicable, upon the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company and the Guarantors in the execution of such supplemental indenture unless such supplemental indenture affects the
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Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee in its discretion may but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Opinion of Counsel and Officer’s Certificate as conclusive evidence that any supplemental indenture executed pursuant to this Article IX is authorized or permitted by, and conforms to, the terms of this Article IX.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 9.05, the Trustee shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, such notice to be prepared by the Company, to the Securityholders of each series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR
Section 10.01. Consolidation, Merger and Sale of Assets by the Company.
The Company may, without the consent of the Holders of any Outstanding Securities, consolidate with or sell, lease or convey all or substantially all of its properties or assets to, or merge with or into, any other Person, provided, that:
(i) the Company is the continuing Person or, alternatively, the successor Person formed by or resulting from such consolidation or merger, or the Person that receives the transfer of such properties or assets (the “Successor Company”), is a corporation or limited liability company or similar entity organized under the laws of England and Wales, any member state of the European Economic Area or any state of the United States or the District of Columbia and expressly assumes by means of a supplemental indenture the Obligations of the Company under the Securities;
(ii) immediately after giving effect to such transaction, no Event of Default and no event that, after notice or the lapse of time, or both, would become an Event of Default has occurred and is continuing;
(iii) each Guarantor (unless it is the other party to the transactions described above, in which case the second succeeding paragraph shall apply) shall have by means of a supplemental indenture confirmed that its Guarantee shall apply to the Successor Company’s Obligations under this Indenture and the Securities; and
(iv) an Officer’s Certificate and Opinion of Counsel are delivered to the Trustee, each stating that the consolidation, merger, conveyance or transfer complies with clauses (i), (ii) and (iii) above.
The Successor Company will succeed to, and be substituted for, the Company, and may exercise all of the rights and powers of the Company, under this Indenture. In such a case, the Company will be relieved of all Obligations and covenants under the Securities and this Indenture, provided, that in the case of a lease of all or substantially all of the properties or assets of the Company, the Company will not be released from the obligation to pay the principal of and premium, if any, and interest on the Securities.
Section 10.02. Consolidation, Merger and Sale of Assets by a Guarantor.
Any Guarantor may, without the consent of the Holders of any Outstanding Securities, consolidate with or sell, lease or convey all or substantially all of its properties or assets to, or merge with or into, any other Person, provided, that:
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(i) such Guarantor is the continuing Person or, alternatively, the successor Person formed by or resulting from such consolidation or merger, or the Person that receives the transfer of such properties or assets (the “Successor Guarantor”), is a corporation or limited liability company or similar entity organized under the laws of England and Wales, any member state of the European Economic Area or any state of the United States or the District of Columbia and expressly assumes by means of a supplemental indenture the Obligations of such Guarantor under its Guarantee; provided, that this clause (i) shall not apply to any transaction in which the other party thereto is the Company or another Guarantor;
(ii) immediately after giving effect to such transaction, no Event of Default and no event that, after notice or the lapse of time, or both, would become an Event of Default has occurred and is continuing; and
(iii) an Officer’s Certificate and Opinion of Counsel are delivered to the Trustee, each stating that the consolidation, merger, conveyance or transfer complies with clauses (i) and (ii) above.
For the avoidance of doubt, any Guarantor whose Guarantee is to be released in accordance with the terms of such Guarantee shall not be required to comply with clause (i) of the immediately preceding paragraph.
The Successor Guarantor will succeed to, and be substituted for, such Guarantor, and may exercise all of the rights and powers of such Guarantor, under this Indenture. In such a case, such Guarantor will be relieved of all obligations and covenants under the Securities and this Indenture, provided, that in the case of a lease of all or substantially all of the properties or assets of such Guarantor, such Guarantor will not be released from its Guarantee.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.01. Applicability of Article.
If the Securities of a series are denominated and payable only in Dollars (except as provided pursuant to Section 2.01), then the provisions of this Article XI relating to defeasance of Securities shall be applicable except as otherwise specified pursuant to Section 2.01 for Securities of such series. Defeasance provisions, if any, for Securities denominated in a Foreign Currency may be specified pursuant to Section 2.01.
Section 11.02. Satisfaction and Discharge of Indenture.
If at any time:
(a) the Company or any Guarantor shall have delivered or shall have caused to be delivered to the Trustee for cancellation all Securities of a series theretofore authenticated (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07) and Securities for whose payment funds or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company or such Guarantor (and thereupon repaid to the Company or such Guarantor or discharged from such trust, as provided in Section 11.06); or
(b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and payable or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company or any Guarantor shall irrevocably deposit or cause to be deposited with the Trustee as trust funds the entire amount (in funds in Dollars or Governmental Obligations or a combination thereof) (except as otherwise provided pursuant to Section 2.01) sufficient to pay the entire Indebtedness including the principal and premium, if any, and interest to the date of such deposit (if such Securities have become due and payable) or to the maturity thereof or the date of redemption of such Securities, as the case may be; and
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(c) if in either case of clauses (a) or (b) above the Company or any Guarantor shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company or any Guarantor, then this Indenture shall cease to be of further effect with respect to such series except for the provisions of Sections 2.05, 2.06, 2.07, 4.02, 4.03, 7.05, 7.10, 11.04 and 11.05, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.06, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.03. Defeasance and Discharge of Obligations; Covenant Defeasance.
(a) The Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in clause (c) of this Section 11.03, be deemed to have been discharged from their Obligations with respect to all Outstanding Securities of a series issued under this Indenture and Guarantees of such series issued under this Indenture on the date the conditions set forth below in clauses (i) through (vi) of Section 11.03(c) are satisfied with respect to such series (“legal defeasance”). For this purpose, legal defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Securities of such series, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 11.04 and the other Sections of this Indenture referred to below, and to have satisfied all its other Obligations under such Securities and this Indenture, including the Obligations of the Guarantors (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the provisions of Sections 2.05, 2.06, 2.07, 4.02, 7.05, 7.06, 7.10, 11.04, 11.05 and 11.06, which shall survive until otherwise terminated or discharged under this Indenture.
Subject to compliance with this Article 11, the Company may exercise its legal defeasance option under this clause (a) notwithstanding the prior exercise of its covenant defesance option under clause (b) of this Section 11.03.
(b) In addition, the Company, at its option and at any time, by written notice executed by an Officer delivered to the Trustee, may subject to satisfaction of the conditions set forth in clause (c) of this Section 11.03, elect to have its obligations and the obligations of the Guarantors, to the extent applicable to each, under Section 4.04 and Section 5.03 and each covenant contained in Article X, and any other covenant contained in the Board Resolution or supplemental indenture relating to such series pursuant to Section 2.01, discharged with respect to all Outstanding Securities of a series, this Indenture and any indentures supplemental to this Indenture insofar as such Securities are concerned (“covenant defeasance”), such discharge to be effective on the date the conditions set forth in clauses (i) through (vi) of clause (c) of this Section 11.03 are satisfied with respect to such series, and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration of Securityholders (and the consequences of any thereof) in connection with such covenants, but shall continue to be “Outstanding” for all other purposes under this Indenture. For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of a series, the Company and each Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 6.01(a)(4) or otherwise, and clauses (4), (5) and (8) of Section 6.01(a) shall no longer apply to such series, but except as specified in this Section 11.03(b), the remainder of the Company’s and the Guarantors’ obligations under the Securities of such series, this Indenture, and any indentures supplemental to this Indenture with respect to such series shall be unaffected thereby.
(c) The following shall be the conditions to the application of Section 11.03 to the Outstanding Securities of the applicable series:
(i) the Company or any Guarantor irrevocably deposits in trust with the Trustee or, at the option of the Trustee, with a trustee satisfactory to the Trustee and the Guarantors or the Company, as the case may be, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, an amount in funds, in Dollars or in Governmental Obligations or a combination thereof that through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient, as determined by a nationally recognized firm of certified public accountants, to pay the principal and premium, if any, and interest on such Securities on the scheduled due dates therefor
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(and the Company shall specify whether such Securities are being defeased to maturity or to a particular redemption date), provided that (A) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such funds or the proceeds of such Governmental Obligations to the Trustee and (B) the Trustee shall have been irrevocably instructed to apply such funds or the proceeds of such Governmental Obligations to the payment of said principal, premium, if any, and interest with respect to the Securities of such series;
(ii) the Company delivers to the Trustee an Officer’s Certificate stating that all conditions precedent specified herein relating to defeasance or covenant defeasance, as the case may be, have been complied with, and an Opinion of Counsel to the same effect;
(iii) no Default or Event of Default with respect to such series shall have occurred and be continuing on the date of such deposit (other than, if applicable, a Default or Event of Default with respect to that series of Securities resulting from the borrowing of funds to be applied to such deposit);
(iv) the Company shall have delivered to the Trustee (i) an Opinion of Counsel to the effect that the deposit and related legal defeasance or covenant defeasance will not cause the Holders and beneficial owners of the Securities of such series to recognize income, gain or loss for United States Federal income tax purposes and such Holders and beneficial owners will be subject to United States Federal income tax on the same amounts, in the same manner, and at the same times as would have been the case if such deposit and defeasance had not occurred (and if the Company elects legal defeasance, such Opinion of Counsel shall be based upon a ruling from the Internal Revenue Service or a change in law to that effect) and (ii) an Opinion of Irish Counsel that the deposit and related defeasance will not cause payments on the Securities of such series to be subject to Irish withholding tax in a manner different than would have been the case if such deposit and defeasance had not occurred;
(v) such covenant defeasance shall not (i) cause the Trustee to have a conflicting interest for purposes of the Trust Indenture Act with respect to any Securities or (ii) result in the trust arising from such deposit to constitute, unless it is qualified, a regulated investment company under the Investment Company Act of 1940; and
(vi) notwithstanding any other provisions of this Section 11.03, such covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantors pursuant to Section 2.01.
After such irrevocable deposit made pursuant to this Section 11.03 and satisfaction of the other conditions set forth herein, the Trustee upon request shall acknowledge in writing the discharge of the Company’s and the Guarantors’ obligations pursuant to this Section 11.03.
Section 11.04. Deposited Funds to be Held in Trust.
All funds or Governmental Obligations deposited with the Trustee pursuant to Sections 11.02 or 11.03 shall be held in trust and shall be available for payment as due, either directly or through any paying agent (including the Company or any Guarantor acting as its own paying agent), to the Holders of the particular series of Securities for the payment or redemption of which such funds or Governmental Obligations have been deposited with the Trustee.
Section 11.05. Payment of Funds Held by Paying Agents.
In connection with the provisions of Section 11.02 or 11.03, all funds or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the Company or any Guarantor, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such funds or Governmental Obligations.
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Section 11.06. Repayment to the Guarantors or the Company.
Any funds or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company or any Guarantor, in trust for payment of principal of, premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the Holders of such Securities for at least two years after the date upon which the principal of, premium, if any, or interest on such Securities shall have respectively become due and payable, shall be repaid to the Company or such Guarantor, as applicable, or if then held by the Company or any Guarantor shall be discharged from such trust; and thereafter, the paying agent and the Trustee shall be released from all further liability with respect to such funds or Governmental Obligations, and the Holder of any of the Securities entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to the Company or the Guarantors, as applicable, for the payment thereof. Anything in this Article XI to the contrary notwithstanding, subject to Section 7.06, the Trustee shall deliver or pay to the Company or the Guarantors, as applicable, from time to time upon request by the Company or the Guarantors any funds or Governmental Obligations (or other property and any proceeds therefrom) held by it as provided in Sections 11.02 or 11.03 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect a defeasance or covenant defeasance, as the case may be, in accordance with this Article XI.
Section 11.07. Reinstatement.
If the Trustee or paying agent is unable to apply any funds or Governmental Obligations in accordance with Section 11.02 or 11.03 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and each Guarantor’s obligations under this Indenture, any indentures supplemental to this Indenture with respect to the applicable series of Securities and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.02 or 11.03, as the case may be, until such time as the Trustee or paying agent is permitted to apply all such funds or Governmental Obligations in accordance with Section 11.02 or 11.03, as the case may be; provided, however, that if the Company or any Guarantor has made any payment of principal, premium, if any, or interest on any Securities of such series following the reinstatement of its obligations as aforesaid, the Company or such Guarantor, as applicable, shall be subrogated to the rights of the Holders of such Securities of such series to receive such payment from the funds or Governmental Obligations held by the Trustee or paying agent.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01. No Recourse.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer, director or employee, past, present or future as such, of the Company or any Guarantor or of any predecessor or successor corporation, either directly or through the Company or the Guarantors or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the Obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers, directors or employees as such, of the Company or any Guarantor or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer, director or employee as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Effect on Successors and Assigns.
All the agreements of the Company and each Guarantor in this Indenture or the Securities shall bind its respective successor whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successor whether so expressed or not.
Section 13.02. Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company or any Guarantor shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company or such Guarantor, as applicable.
Section 13.03. Notices.
Any notice or communication by the Company, the Guarantors or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the other’s address:
| If to the Company or any Guarantor: | STERIS Corporation. 5960 Heisley Rd. Mentor, Ohio 44060 Attention of Phone: Facsimile: | |
| If to the Trustee: | U.S. Bank Global Corporate Trust Cleveland, Ohio 44115 | CN-OH-RN11
Attention Global Corporate Trust | |
| With a copy to: |
Attn: Facsimile No.: | |
The Company, the Guarantors or the Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices, approvals, consents, requests, and any communications hereunder must be in writing; provided that any communication to the Trustee hereunder must be sent to a Responsible Officer of the Trustee at the Corporate Trust Office, and must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the authorized representative), in English (“Executed Documentation”)). Any Executed Documentation will be binding on all parties hereto to the same extent as if it were physically executed. When the Trustee acts on any
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Executed Documentation sent by electronic transmission, the Trustee will not be responsible or liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding that such Executed Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such party sent or intended to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with, a subsequent written instruction or communication; it being understood and agreed that the Trustee shall conclusively presume that Executed Documentation that purports to have been sent by an authorized officer of a Person has been sent by an authorized officer of such Person. The party providing Executed Documentation through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic methods, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.
All notices, approvals, consents, requests and any communications hereunder (other than those sent to Securityholders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery; and when receipt acknowledged, if sent to the Trustee in accordance with the paragraph above.
Any notice or communication to a Securityholder shall be mailed by first-class mail, certified or registered, return receipt requested, to his address shown on the Security Register. Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders.
In the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is conclusively presumed duly given, whether or not the addressee receives it.
Section 13.04. Governing Law.
This Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
Section 13.05. Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not as equity for United States Federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.06. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company or any Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or such Guarantor shall deliver to the Trustee an Officer’s Certificate stating that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically dealt with by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
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(b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.07. Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth in an Officer’s Certificate, or established in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business Day, then payment of principal, premium, if any, or interest or principal and premium, if any, may be made on the next succeeding Business Day with the same force and effect as if made on the date that payment was due, and no interest shall accrue on that payment for the period from and after that interest or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day.
Section 13.08. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.09. Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Section 13.10. Separability.
In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company, any Guarantor or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this 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.
Section 13.13. Consent to Jurisdiction and Service of Process.
The Company and each of the Guarantors agrees that any legal suit, action or proceeding brought by any party to enforce any rights under or with respect to this Indenture, any Security and any Guarantee or any other document or the transactions contemplated hereby or thereby may be instituted in any state or Federal court in The City of New York, State of New York, United States of America, irrevocably waives to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any such suit, action or
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proceeding, irrevocably waives to the fullest extent permitted by law any claim that and agrees not to claim or plead in any court that any such action, suit or proceeding brought in such court has been brought in an inconvenient forum and irrevocably submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding or for recognition and enforcement of any judgment in respect thereof. The Company and the Guarantors agree that a final non-appealable judgment in any such suit, action or proceedings shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
The Company and each of the Guarantors hereby irrevocably and unconditionally designates and appoints as its authorized agent to receive and forward on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company or any Guarantor, as the case may be. Nothing in this Section 13.13 shall affect the right of the Holders to serve process in any manner permitted by law or limit the right of the Holders to bring proceedings against the Company or the Guarantors in the courts of any jurisdiction or jurisdictions. The Company and each Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of in full force and effect so long as the Securities are outstanding. If for any reason ceases to be available to act as such, the Company and each Guarantor agrees to designate a new agent in the United States.
To the extent that the Company or the Guarantors has or hereafter may acquire any immunity from jurisdiction of any court (including any court in the United States, the State of New York, Ireland, England, Wales or other jurisdiction in which the Company or the Guarantors, or any successor thereof, may be organized or any political subdivisions thereof) or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property or assets, this Indenture, the Securities, the Guarantees or any other documents or actions to enforce judgments in respect of any thereof, then each of Company and each of the Guarantors hereby irrevocably waives such immunity, and any defense based on such immunity, in respect of its obligations under the above-referenced documents and the transactions contemplated thereby, to the extent permitted by law.
Section 13.14. Waiver of Jury Trial.
EACH OF THE COMPANY, EACH GUARANTOR, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.15. USA Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with U.S. Bank National Association. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
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ARTICLE XIV
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
Section 14.01. Tax Redemption.
The Company may redeem the Securities of a particular series, in whole but not in part, at its discretion at any time upon giving not less than 10 nor more than 60 days’ prior notice to the Holders of such Securities (which notice will be irrevocable and given in accordance with the procedures described in Section 3.02), at a redemption price equal to 100% of the aggregate principal amount thereof, together with accrued and unpaid interest, if any, to but not including the redemption date, and all Additional Amounts (if any) then due and which will become due on the redemption date as a result of the redemption or otherwise, if on the next date on which any amount would be payable in respect of such Securities, the Company (or any Guarantor with respect to any Guarantee) is or would be required to pay Additional Amounts, and the Company (or any Guarantor with respect to any Guarantee) cannot avoid any such payment obligation by taking reasonable measures available to it (including, without limitation, making payment through a paying agent located in another jurisdiction or, in the case of a payment by any Guarantor, by having such payment be made by the Company or another Guarantor that can make such payment without the obligation to pay Additional Amounts), and the requirement arises as a result of:
(a) any amendment to, or change in, the laws or any regulations or rulings promulgated thereunder of a relevant Taxing Jurisdiction which change or amendment is announced and becomes effective on or after the Issue Date of such Securities (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date of such Securities, such later date); or
(b) any amendment to, or change in, an official written interpretation or application of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice) which amendment or change is announced and becomes effective on or after the Issue Date of such Securities (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date of such Securities, such later date) (each of the foregoing clauses (a) and (b), a “Change in Tax Law”).
The Company will not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Company (or any Guarantor with respect to any Guarantee) would be obligated to make such of Additional Amounts if a payment in respect of the Securities of such series were then due, and the obligation to pay Additional Amounts must be in effect at the time such notice is given. Prior to the delivery of any notice of redemption of the Securities of any series pursuant to the foregoing, the Company will deliver to the Trustee (a) an Officer’s Certificate stating that the obligation to pay such Additional Amounts cannot be avoided by the Company (or any Guarantor with respect to any Guarantee) taking reasonable measures available to it; and (b) an Opinion of Counsel from independent tax counsel qualified under the laws of the relevant Taxing Jurisdiction to the effect that the Company (or any Guarantor with respect to any Guarantee) has or will become obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.
Section 14.02. Payment of Additional Amounts.
All payments made by or on behalf of the Company under or with respect to any Securities of any series (or by any Guarantor with respect to any Guarantee) will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes, unless the Company (or such Guarantor) is required to withhold or deduct such Taxes by law. If the Company (or any Guarantor) is so required to withhold or deduct from any payment made under or with respect to the Securities of any series any amount for or on account of any Taxes imposed under (1) any jurisdiction in which the Company (or any Guarantor) is then incorporated, organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Company (or any
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Guarantor) (including the jurisdiction of any paying agent for the Securities of such series) or any political subdivision or taxing authority or agency thereof or therein (each of (1) and (2), a “Taxing Jurisdiction”), the Company (or such Guarantor) will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder and beneficial owner of the Securities of such series (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, no Additional Amounts will be payable to a Holder with respect to:
(a) any Taxes that would not have been imposed but for the existence of any actual or deemed present or former connection between the Holder or the beneficial owner of the Securities of such series (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the Holder or beneficial owner is an estate, a nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (including being a resident of such jurisdiction for Tax purposes), other than the holding of such Security, the enforcement of rights under such Security or under a Guarantee or the receipt of any payments in respect of such Security or Guarantee;
(b) any Taxes imposed as a result of the presentation of a Security of such series for payment (in cases in which presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had such Security been presented on the last day of such 30-day period);
(c) any estate, inheritance, gift, sales, personal property, transfer or similar Taxes;
(d) any Taxes payable other than by deduction or withholding from payments under, or with respect to, Securities of such series or any Guarantee;
(e) any Taxes imposed or withheld by reason of the failure of the Holder or beneficial owner of Securities of such series to comply with any reasonable written request of the Company or the relevant Guarantor, addressed to the Holder and made at least 60 days before any such withholding or deduction would be made, to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Taxing Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is not prohibited from complying with such request;
(f) any Tax imposed on or with respect to any payment by the Company or the relevant Guarantor to the Holder if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of Securities of such series;
(g) any Taxes imposed pursuant to Sections 1471-1474 of the United States Internal Revenue Code of 1986, as amended, and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing, or relating to, FATCA or any law, regulation or official guidance enacted or issued in any jurisdiction with respect thereto; or
(h) any combination of the above items.
In addition to the foregoing, the Company and the Guarantors will also pay and indemnify the Holders for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Taxing Jurisdiction on the execution, delivery, issuance, registration or enforcement of, or the receipt of payments with respect to, any of the Securities, this Indenture, any Guarantee or any other document or instrument referred to therein (other than on or in connection with a transfer of any Securities other than the initial resale of such Securities).
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If the Company or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any Securities or any Guarantee, each of the Company or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee, in writing, promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate(s) must also set forth any other information necessary to enable the paying agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company or the relevant Guarantor will also provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
The Company or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Company or the relevant Guarantor will furnish to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (satisfactory to the Trustee) by such entity. Upon reasonable request, copies of Tax receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Securities.
Wherever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest, if any, or any other amount payable under or with respect to any Security or any Guarantee, such mention will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Company or any Guarantor is incorporated, engaged in business or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on any Securities (or any Guarantee) and, in each case, any political subdivision or taxing authority thereof or therein.
ARTICLE XV
GUARANTEES
Section 15.01. Guarantees.
Each Guarantor hereby fully and unconditionally, and jointly and severally with each other Guarantor, guarantees (i) to each Holder of each Security that is authenticated and delivered by the Trustee, and (ii) to the Trustee on behalf of such Holder, the due and punctual payment of the principal of, premium, if any, and interest on such Security when and as the same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture and such other Obligations under such Security and this Indenture. In case of the failure of the Company punctually to make any such payment, each Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the stated maturity or by acceleration, call for redemption or otherwise, and as if such payment were made by the Company. The Guarantors, jointly and severally, agree to pay, in addition to the amount stated above, any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under the Guarantees.
Each Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, the validity, regularity or enforceability of such Security or this Indenture, the absence of any action to enforce the same or any release, amendment, waiver or indulgence granted to the Company or such Guarantor or any consent to departure from any requirement of any other guarantee of all or
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any of the Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Guarantee. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders of the applicable series of Securities are prevented by applicable law from exercising their respective rights to accelerate the maturity of such Securities, to collect interest on such Securities, or to enforce or exercise any other right or remedy with respect to such Securities, each Guarantor agrees to pay to the Trustee for the account of such Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of such Holders.
The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of such Securities, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of such Securities, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, such Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Any term or provision of the Guarantee to the contrary notwithstanding, the aggregate amount of the Obligations guaranteed hereunder shall be reduced to the extent necessary to prevent such Guarantee from violating or becoming voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
In case any provision of any Guarantee 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. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 15.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of a Security, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal or state or the U.K. Insolvency Act of 1986 or any similar United Kingdom, England and Wales law or The Companies Act of 1981 (as amended), the Conveyancing Act 1983 (as amended) or such other similar Bermuda law or such other foreign law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under this Article XV, result in the Obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
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Section 15.03. Execution and Delivery.
To evidence its Guarantee set forth in Section 15.01 hereof, each Guarantor hereby agrees that this Indenture (or an indenture supplemental hereto) shall be executed on behalf of such Guarantor by any member of its Board of Directors, its chief executive officer, the president, the chief financial officer or any vice president.
Each Guarantor hereby agrees that its Guarantee set forth in Section 15.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on any Security.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Security, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by this Indenture or in accordance with Section 2.01 pursuant to a Board Resolution, and as set forth in an Officer’s Certificate, or established in one or more indentures supplemental to this Indenture, the Company shall cause any Subsidiary required to become a Guarantor hereunder to comply with the provisions of this Article XV, to the extent applicable.
Section 15.04. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of the Securities against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 15.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture or such series of Securities shall have been paid in full.
Section 15.05. Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 15.06. Releases of Guarantees.
A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee is required for the release of such Guarantor’s Guarantee, upon any of the following events, except with respect to any series of Securities for which the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series expressly provides that any such event shall not apply or any other event shall apply:
(a) in the case of a Subsidiary Guarantor, any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, consolidation or otherwise) of capital stock or other interests of such Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Subsidiary of the Company, which sale, assignment, transfer, conveyance, exchange or other disposition is made in compliance with the provisions of this Indenture (including Section 10.02); provided that all guarantees and other obligations of such Subsidiary Guarantor in respect of all other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities shall terminate upon consummation of such transaction;
(b) upon the sale or disposition of all or substantially all of the assets of a Subsidiary Guarantor, which sale or disposition is made in compliance with the provisions of this Indenture (including Section 10.02); provided that all guarantees and other Obligations of such Subsidiary Guarantor in respect of all other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities shall terminate upon consummation of such transaction;
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(c) the release or discharge of such Subsidiary Guarantor from its guarantee of Indebtedness or its Obligations under any other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities (including, by reason of the termination of such Indebtedness), except a release or discharge by or as a result of payment under such guarantee; or
(d) the Company’s exercise of its legal defeasance option or covenant defeasance option as described under Section 11.03 or the discharge of the Company’s Obligations under this Indenture in accordance with the terms hereof, including Section 11.02.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| STERIS PLC, as Issuer | ||
| By: |
| |
| Name: | ||
| Title: | ||
| STERIS IRISH FINCO UNLIMITED COMPANY, as a Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| STERIS CORPORATION, as a Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| STERIS LIMITED, as a Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
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EXHIBIT A
FORM OF CERTIFICATE OF TRANSFER
STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
Attention: [ ]
[Trustee]
[Address]
Re: [insert description of Securities]
Ladies and Gentlemen,
Reference is hereby made to the Indenture, dated as of , , among STERIS plc (the “Company”), each of the guarantors party thereto (the “Guarantors”) and , a , as trustee (the “Trustee”), [as supplemented by that certain supplemental indenture dated as of ] [and the Board Resolution adopted ] (together, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. (the “Transferor”) owns and proposes to transfer the Security or Securities or interest[s] in such Security or Securities specified in Annex A hereto, in the principal amount of $ in such Security or Securities or interest[s] (the “Transfer”), to (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Security or a Definitive Security Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Security is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Security for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A (a “QIB”) in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any State of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Security and/or the Definitive Security and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Security or a Definitive Security pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (y) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (z) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904 (b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed Transfer is being made prior to the expiration of the Distribution Compliance Period, the Transfer is not being made to a U.S. person (as such is defined in Regulation S) or for the account or benefit of a U.S. person (other than an initial purchaser of the Securities) and the interest transferred will be held immediately thereafter through Euroclear or Clearstream. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Regulation S Global Security and/or the Definitive Security and in the Indenture and the Securities Act.
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3. Check and complete if Transferee will take delivery of a beneficial interest in a Definitive Security pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Securities and Restricted Definitive Securities and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any State of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) Such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or
(b) Such Transfer is being effected to the Company or a subsidiary thereof; or
(c) Such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act; or
(d) Such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Security or Restricted Definitive Security and the requirements of the exemption claimed, which certification is supported by a certificate executed by the Transferee in the form attached as Exhibit C to the Indenture. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the Definitive Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Definitive Security and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Security or of an Unrestricted Definitive Security.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities, on Restricted Definitive Securities and in the Indenture and the Securities Act.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities, on Restricted Definitive Securities and in the Indenture and the Securities Act.
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(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
Dated:
|
[Insert Name of Transferor] | ||
| By: |
| |
| Name | ||
| Title | ||
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ANNEX A TO CERTIFICATE OF TRANSFER
| 1. | The Transferor owns and proposed to transfer the following: |
[CHECK ONE OF (a) OR (b)]
| (a) | a beneficial interest in the: |
| (i) | 144A Global Security (CUSIP ), or |
| (ii) | Regulation S Global Security (CUSIP ), or |
| (b) | a Restricted Definitive Security. |
| 2. | After the transfer the Transferee will hold: |
| (a) | a beneficial interest in the: |
| (i) | 144A Global Security (CUSIP ), or |
| (ii) | Regulation S Global Security (CUSIP ), or |
| (iii) | Unrestricted Global Security (CUSIP ); or |
| (b) | a Restricted Definitive Security; or |
| (c) | an Unrestricted Definitive Security, in accordance with the terms of the Indenture. |
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EXHIBIT B
FORM OF CERTIFICATE OF EXCHANGE
STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
Attention: [ ]
[Trustee]
[Address]
Re: [insert description of Securities]
Ladies and Gentlemen,
Reference is hereby made to the Indenture, dated as of , , among STERIS plc, a public limited company incorporated under the laws of Ireland (the “Company”), the guarantors party thereto (the “Guarantors”) and , a , as trustee (the “Trustee”) [as supplemented by that certain supplemental indenture dated as of ] [and the Board Resolution adopted ] (together, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the “Owner”) owns and proposes to transfer the Security or Securities or interest[s] in such Security or Securities specified herein, in the principal amount of $ in such Security or Securities or interest[s] (the “Exchange”). In connection with the Transfer, the Transferor hereby certifies that:
1. Exchange of Restricted Definitive Securities or Beneficial Interests in a Restricted Global Security for Unrestricted Definitive Securities or Beneficial Interests in an Unrestricted Global Security.
(a) Check if Exchange is from beneficial interest in a Restricted Global Security to beneficial interest in an Unrestricted Global Security. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Security for a beneficial interest in an Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Securities and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global Security to Unrestricted Definitive Security. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Security for an Unrestricted Definitive Security in an equal principal amount, the Owner hereby certifies (i) the Definitive Security is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(c) Check if Exchange is from Restricted Definitive Security to beneficial interest in an Unrestricted Global Security. In connection with the Owner’s Exchange of a Restricted Definitive Security for a beneficial interest in an Unrestricted Global Security, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Securities and
B-1
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(d) Check if Exchange is from Restricted Definitive Security to Unrestricted Definitive Security. In connection with the Owner’s Exchange of a Restricted Definitive Security for an Unrestricted Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive Security is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
2. Exchange of Restricted Definitive Securities or Beneficial Interests in Restricted Global Securities for Restricted Definitive Securities or Beneficial Interests in Restricted Global Securities.
(a) Check if Exchange is from beneficial interest in a Restricted Global Security to Restricted Definitive Security. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Security for a Restricted Definitive Security with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Security is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Security issued will continue to be subject to the restrictions on transfer enumerated in the B-2 Private Placement Legend printed on the Restricted Definitive Security and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Security to beneficial interest in a Restricted Global Security. In connection with the Exchange of the Owner’s Restricted Definitive Security for a beneficial interest in the: [CHECK ONE] 144A Global Security or. Regulation S Global Security with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Global Securities and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any State of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Security and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
|
[Insert Name of Owner] | ||||
| By: |
| |||
| Name | ||||
| Title | ||||
| Dated: |
| |||
B-2
EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
[Trustee]
[Address]
Re: [insert description of Securities]
Ladies and Gentlemen,
Reference is hereby made to the Indenture, dated as of , among STERIS plc, an Irish public limited company (the “Company”), the guarantors party thereto (the “Guarantors”), and , a, as trustee (the “Trustee”) [as supplemented by that certain supplemental indenture dated as of ] [and the Board Resolution adopted ] (together, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $ aggregate principal amount of: (a) a beneficial interest in a Global Security, or (b) a Definitive Security, we confirm that:
1. We understand that any subsequent transfer of the Securities or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Securities or any interest therein except in compliance with, such restrictions and conditions and the United States Securities Act of 1933, as amended (the “Securities Act”).
2. We understand that the offer and sale of the Securities have not been registered under the Securities Act, and that the Securities and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Securities or any interest therein, we will do so only (1) in the United States to a person whom the seller reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements of Rule 144A, (2) outside the United States in an offshore transaction in accordance with Rule 904 under the Securities Act, (3) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available) or (4) pursuant to an effective registration statement under the Securities Act, in each of cases (1) through (4) in accordance with any applicable securities laws of any state of the United States, and we further agree to notify any purchaser of the Securities from us of the resale restrictions referred to above.
3. We understand that, on any proposed resale of the Securities or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that any subsequent transfer by us of the Securities or beneficial interest therein acquired by us must be effected through one of the initial purchasers of the Securities.
4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Securities, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
C-1
5. We are acquiring the Securities or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
| Dated: |
| |||
|
[Insert Name of Accredited Investor] | ||||
| By: |
| |||
| Name | ||||
| Title | ||||
C-2
SCHEDULE 1
LIST OF GUARANTORS
STERIS Irish FinCo Unlimited Company
STERIS Corporation
STERIS Limited
Schedule 1-1
STERIS IRISH FINCO UNLIMITED COMPANY
as Issuer
AND
THE GUARANTORS PARTY HERETO
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of
, 20
DEBT SECURITIES
TABLE OF CONTENTS
Page
| ARTICLE I DEFINITIONS | 1 | |||||
| Section 1.01. |
Definitions of Terms | 1 | ||||
| ARTICLE II ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES | 8 | |||||
| Section 2.01. |
Designation and Terms of Securities | 8 | ||||
| Section 2.02. |
Form of Securities and Trustee’s Certificate | 10 | ||||
| Section 2.03. |
Denominations; Provisions for Payment | 11 | ||||
| Section 2.04. |
Execution and Authentications | 13 | ||||
| Section 2.05. |
Transfer and Exchange | 14 | ||||
| Section 2.06. |
Temporary Securities | 19 | ||||
| Section 2.07. |
Mutilated, Destroyed, Lost or Stolen Securities | 20 | ||||
| Section 2.08. |
Cancellation | 20 | ||||
| Section 2.09. |
Benefits of Indenture | 20 | ||||
| Section 2.10. |
Authenticating Agent | 21 | ||||
| Section 2.11. |
Global Securities | 21 | ||||
| Section 2.12. |
CUSIP Numbers | 21 | ||||
| Section 2.13. |
Securities Denominated in Foreign Currencies | 21 | ||||
| Section 2.14. |
Wire Transfers | 22 | ||||
| Section 2.15. |
Designated Currency | 22 | ||||
| ARTICLE III REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS | 22 | |||||
| Section 3.01. |
Redemption | 22 | ||||
| Section 3.02. |
Notice of Redemption; Partial Redemption | 23 | ||||
| Section 3.03. |
Payment Upon Redemption | 24 | ||||
| Section 3.04. |
Sinking Fund | 24 | ||||
| Section 3.05. |
Satisfaction of Sinking Fund Payments with Securities | 24 | ||||
| Section 3.06. |
Redemption of Securities for Sinking Fund | 25 | ||||
| ARTICLE IV CERTAIN COVENANTS | 25 | |||||
| Section 4.01. |
Payment of Principal, Premium and Interest | 25 | ||||
| Section 4.02. |
Maintenance of Office or Agency | 25 | ||||
| Section 4.03. |
Paying Agents; Security Registrar | 25 | ||||
| Section 4.04. |
Statement by Officers as to Default | 26 | ||||
| Section 4.05. |
Appointment to Fill Vacancy in Office of Trustee | 26 | ||||
| Section 4.06. |
Waiver of Certain Covenants | 26 | ||||
| ARTICLE V SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE | 26 | |||||
| Section 5.01. |
Company to Furnish Trustee Names and Addresses of Securityholders | 26 | ||||
| Section 5.02. |
Preservation of Information; Communications with Securityholders | 27 | ||||
| Section 5.03. |
Reports by the Company | 27 | ||||
| Section 5.04. |
Reports by the Trustee | 27 | ||||
i
| ARTICLE VI REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT | 27 | |||||
| Section 6.01. |
Events of Default | 27 | ||||
| Section 6.02. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 29 | ||||
| Section 6.03. |
Application of Funds Collected | 30 | ||||
| Section 6.04. |
Limitation on Suits | 31 | ||||
| Section 6.05. |
Rights and Remedies Cumulative; Delay or Omission not Waiver | 31 | ||||
| Section 6.06. |
Control by Securityholders | 31 | ||||
| Section 6.07. |
Undertaking to Pay Costs | 32 | ||||
| Section 6.08. |
Waiver of Usury, Stay or Extension of Laws | 32 | ||||
| ARTICLE VII CONCERNING THE TRUSTEE |
32 | |||||
| Section 7.01. |
Certain Duties and Responsibilities of Trustee | 32 | ||||
| Section 7.02. |
Certain Rights of Trustee | 33 | ||||
| Section 7.03. |
Trustee not Responsible for Recitals or Issuance of Securities | 35 | ||||
| Section 7.04. |
May Hold Securities | 35 | ||||
| Section 7.05. |
Funds Held in Trust | 35 | ||||
| Section 7.06. |
Compensation, Reimbursement and Indemnification | 35 | ||||
| Section 7.07. |
Reliance on Officer’s Certificate and other Documents | 36 | ||||
| Section 7.08. |
Disqualification; Conflicting Interests | 36 | ||||
| Section 7.09. |
Corporate Trustee Required; Eligibility | 36 | ||||
| Section 7.10. |
Resignation and Removal; Appointment of Successor | 36 | ||||
| Section 7.11. |
Acceptance of Appointment by Successor | 37 | ||||
| Section 7.12. |
Merger, Conversion, Consolidation or Succession to Business | 38 | ||||
| Section 7.13. |
Preferential Collection of Claims Against the Company | 38 | ||||
| ARTICLE VIII CONCERNING THE SECURITYHOLDERS |
39 | |||||
| Section 8.01. |
Evidence of Action by Securityholders | 39 | ||||
| Section 8.02. |
Proof of Execution by Securityholders | 39 | ||||
| Section 8.03. |
Who May be Deemed Owners | 39 | ||||
| Section 8.04. |
Certain Securities Owned by Company Disregarded | 40 | ||||
| Section 8.05. |
Actions Binding on Future Securityholders | 40 | ||||
| ARTICLE IX SUPPLEMENTAL INDENTURES |
40 | |||||
| Section 9.01. |
Supplemental Indentures Without the Consent of Securityholders | 40 | ||||
| Section 9.02. |
Supplemental Indentures with Consent of Securityholders | 41 | ||||
| Section 9.03. |
Effect of Supplemental Indentures | 42 | ||||
| Section 9.04. |
Securities Affected by Supplemental Indentures | 42 | ||||
| Section 9.05. |
Execution of Supplemental Indentures | 42 | ||||
| ARTICLE X SUCCESSOR |
43 | |||||
| Section 10.01. |
Consolidation, Merger and Sale of Assets by the Company | 43 | ||||
| Section 10.02. |
Consolidation, Merger and Sale of Assets by a Guarantor | 43 | ||||
| ARTICLE XI SATISFACTION AND DISCHARGE |
44 | |||||
| Section 11.01. |
Applicability of Article | 44 | ||||
| Section 11.02. |
Satisfaction and Discharge of Indenture | 44 | ||||
| Section 11.03. |
Defeasance and Discharge of Obligations; Covenant Defeasance | 45 | ||||
| Section 11.04. |
Deposited Funds to be Held in Trust | 46 | ||||
| Section 11.05. |
Payment of Funds Held by Paying Agents | 46 | ||||
| Section 11.06. |
Repayment to the Guarantors or the Company | 47 | ||||
| Section 11.07. |
Reinstatement | 47 | ||||
ii
| ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
47 | |||||
| Section 12.01. |
No Recourse | 47 | ||||
| ARTICLE XIII MISCELLANEOUS PROVISIONS |
48 | |||||
| Section 13.01. |
Effect on Successors and Assigns | 48 | ||||
| Section 13.02. |
Actions by Successor | 48 | ||||
| Section 13.03. |
Notices | 48 | ||||
| Section 13.04. |
Governing Law | 49 | ||||
| Section 13.05. |
Treatment of Securities as Debt | 49 | ||||
| Section 13.06. |
Compliance Certificates and Opinions | 49 | ||||
| Section 13.07. |
Payments on Business Days | 50 | ||||
| Section 13.08. |
Conflict with Trust Indenture Act | 50 | ||||
| Section 13.09. |
Counterparts | 50 | ||||
| Section 13.10. |
Separability | 50 | ||||
| Section 13.11. |
No Adverse Interpretation of Other Agreements | 50 | ||||
| Section 13.12. |
Table of Contents, Headings, Etc. | 50 | ||||
| Section 13.13. |
Consent to Jurisdiction and Service of Process | 50 | ||||
| Section 13.14. |
Waiver of Jury Trial | 51 | ||||
| Section 13.15. |
USA Patriot Act | 51 | ||||
| ARTICLE XIV ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS |
52 | |||||
| Section 14.01. |
Tax Redemption | 52 | ||||
| Section 14.02. |
Payment of Additional Amounts | 52 | ||||
| ARTICLE XV GUARANTEES |
54 | |||||
| Section 15.01. |
Guarantees | 54 | ||||
| Section 15.02. |
Limitation on Guarantor Liability | 55 | ||||
| Section 15.03. |
Execution and Delivery | 56 | ||||
| Section 15.04. |
Subrogation | 56 | ||||
| Section 15.05. |
Benefits Acknowledged | 56 | ||||
| Section 15.06. |
Releases of Guarantees | 56 | ||||
EXHIBITS:
| Exhibit A |
– |
Form of Certificate of Transfer | ||
| Exhibit B |
– |
Form of Certificate of Exchange | ||
| Exhibit C |
– |
Form of Certificate from Acquiring Institutional Accredited Investors |
SCHEDULES:
| Schedule 1 |
– |
List of Guarantors |
iii
Cross Reference Table1
| Section of Trust Indenture Act of 1939, as amended |
Section of Indenture |
|||
| 310(a) |
7.09 | |||
| 310(b) |
7.08 | |||
| 7.10 | ||||
| 310(c) |
Inapplicable | |||
| 311(a) |
7.13 | |||
| 311(b) |
7.13 | |||
| 311(c) |
Inapplicable | |||
| 312(a) |
5.01 | |||
| 5.02(a) | ||||
| 312(b) |
5.02(b) | |||
| 312(c) |
5.02(b) | |||
| 313(a) |
5.04(a) | |||
| 313(b) |
5.04(b) | |||
| 313(c) |
5.04(a) | |||
| 5.04(b) | ||||
| 313(d) |
5.04(b) | |||
| 314(a) |
5.03 | |||
| 314(b) |
Inapplicable | |||
| 314(c) |
13.06 | |||
| 314(d) |
Inapplicable | |||
| 314(e) |
13.06 | |||
| 314(f) |
Inapplicable | |||
| 315(a) |
7.01 | |||
| 315(b) |
6.01(e) | |||
| 315(c) |
7.01(a) | |||
| 315(d) |
7.01(b) | |||
| 315(e) |
6.07 | |||
| 316(a) |
6.06, 8.04 | |||
| 316(b) |
6.04 | |||
| 316(c) |
8.01 | |||
| 317(a) |
6.02 | |||
| 317(b) |
4.03 | |||
| 318(a) |
13.08 | |||
| • | This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions. |
iv
THIS INDENTURE is dated as of , 20 among STERIS IRISH FINCO UNLIMITED COMPANY, a public unlimited company incorporated under the laws of Ireland (the “Company”), the Guarantors (as hereinafter defined) named herein and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).
RECITALS
A. This Indenture provides for the issuance of unsecured debt securities (the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more series, to be authenticated by the certificate of the Trustee, and for the issuance of guarantees of the Securities.
B. This Indenture is subject to the provisions of the Trust Indenture Act (as defined below) that are deemed to be incorporated into this Indenture and shall, to the extent applicable, be governed by such provisions.
C. All things necessary to make this Indenture a valid agreement, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the Holders of Securities:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions of Terms.
The terms defined in this Section 1.01 (except as in this Indenture otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01 and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the Trust Indenture Act or that are by reference in the Trust Indenture Act defined in the Securities Act of 1933, as amended (the “Securities Act”) (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of the execution of this instrument. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with GAAP.
“144A Global Security”, with respect to any series of Securities, means one or more Global Securities, bearing the Private Placement Legend, that will be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Securities of such series sold in global form in reliance on Rule 144A.
“Additional Amounts” has the meaning set forth in Section 14.02.
“Affiliate”, with respect to any specified Person, means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures”, with respect to any transfer or exchange of or for beneficial interests in any Global Security for a series of Securities, means the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange at the relevant time.
“Authenticating Agent” means an authenticating agent with respect to all or any of the series of Securities appointed with respect to all or any series of the Securities by the Trustee pursuant to Section 2.10.
“Board of Directors” means the Board of Directors or any similar governing body of the Company or any Guarantor, as applicable, or any duly authorized committee of such Board of Directors or such similar governing body.
“Board Resolution” means a copy of a resolution certified by the Secretary, an Assistant Secretary or any member of the Board of Directors of the Company or any Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in full force and effect on the date of such certification.
“Business Day”, with respect to any series of Securities, means any day other than a Saturday, a Sunday or a day on which Federal or State banking institutions in the Borough of Manhattan, The City of New York, or in the city where the office or agency for payment on the Securities is maintained pursuant to Section 4.02, are authorized or obligated by law, executive order or regulation to close.
“Change in Tax Law” has the meaning set forth in Section 14.01.
“Clearstream” means Clearstream Banking S.A., or its successors. “Commission” means the Securities and Exchange Commission.
“Company” means STERIS Irish FinCo Unlimited Company, a public unlimited company incorporated under the laws of Ireland, until a successor entity shall have become such pursuant to Article X, and thereafter “Company” shall mean such successor entity.
“Consolidated Total Assets” means, as of any date of determination, the net book value of all assets of Parent and its subsidiaries as shown in the most recent annual or quarterly consolidated balance sheet of Parent.
“Corporate Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered. The Corporate Trust Office for the Trustee as of the date of the execution of this Indenture is located at U.S. Bank National Association, 60 Livingston Avenue, Saint Paul, Minnesota 55107, Attn: Global Corporate Trust.
“Currency” means Dollars or Foreign Currency.
“Default” means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.
“Defaulted Interest” has the meaning set forth in Section 2.03.
“Definitive Security” means a certificated Security registered in the name of the Securityholder thereof and issued in accordance with Section 2.05.
“Depositary”, with respect to Securities of any series which the Company shall determine will be issued in whole or in part as a Global Security, means The Depository Trust Company (“DTC”), New York, New York, another clearing agency, or any successor registered as a clearing agency under the Exchange Act, and any other applicable U.S. or foreign statute or regulation, which, in each case, shall be designated by the Company pursuant to Section 2.01.
“Designated Currency” has the meaning set forth in Section 2.15.
“Distribution Compliance Period” means the restricted period as defined in Rule 903(b)(3) under the Securities Act.
“Dollar” or “$” means such currency of the United States as at the time of payment is legal tender for the payment of public and private debts.
2
“Dollar Equivalent” means, with respect to any monetary amount in a Foreign Currency, at any time for the determination thereof, the amount of Dollars obtained by converting such Foreign Currency involved in such computation into Dollars at the spot rate for the purchase of Dollars with the applicable Foreign Currency as quoted by JPMorgan Chase Bank, N.A. (unless another comparable financial institution is designated by the Company) in New York, New York, at approximately 11:00 a.m. (New York time) on the date two business days prior to such determination.
“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.
“Euroclear” means Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear System.
“Event of Default” has the meaning set forth in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Executed Documentation” has the meaning set forth in Section 13.03.
“Foreign Currency” means a currency issued by the government of any country other than the United States or a composite currency the value of which is determined by reference to the values of the currencies of any group of countries.
“Foreign Paying Agent” has the meaning set forth in Section 2.13.
“GAAP” means generally accepted accounting principles in the United States of America in effect on the date of this Indenture.
“Global Security”, with respect to any series of Securities, means a Security executed by the Company and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary or its nominee.
“Governmental Obligations” means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States that, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such Governmental Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the Governmental Obligation evidenced by such depositary receipt.
“guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness.
“Guarantee” means, individually, any guarantee of payment of any series of Securities and the Company’s other Obligations under this Indenture by a Guarantor pursuant to the terms of the this Indenture and any indenture supplemental hereto with respect to such series, and, collectively, all such Guarantees.
“Guarantor” means any Person that incurs a Guarantee of a series of the Securities; provided that upon the release and discharge of such Person from its Guarantee in accordance with this Indenture, such Person shall cease to be a Guarantor.
3
“herein,” “hereof” and “hereunder,” and other words of similar import, refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“including” means including without limitation.
“Indebtedness” means, with respect to any Person, obligations of such Person for borrowed money, including without limitation, indebtedness for borrowed money evidenced by notes, bonds, debentures or similar instruments.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into in accordance with the terms hereof.
“Indirect Participant” means any entity that, with respect to DTC, clears through or maintains a direct or indirect, custodial relationship with a Participant.
“Institutional Accredited Investor” means an institution that is an “accredited investor” as defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act, who is not also a QIB.
“Interest Payment Date,” when used with respect to any installment of interest on a Security of a particular series, means the date specified herein, in such Security or in a Board Resolution or in an indenture supplemental hereto with respect to such series as the fixed date on which an installment of interest with respect to Securities of that series is due and payable.
“Issue Date” means, with respect to any series of Securities, the date on which the Securities of such series was first issued.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, Federal or foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Officer” means any member of the Board of Directors, the chief executive officer, the president, the chief financial officer, any vice president, the treasurer, any assistant treasurer, the secretary or any assistant secretary of the Company or any Guarantor, as the case may be.
“Officer’s Certificate” means a certificate, signed by any Officer of the Company or any Guarantor, as the case may be, that is delivered to the Trustee in accordance with the terms hereof. Each such certificate shall include the statements provided for in Section 13.06, if and to the extent required by the provisions thereof.
“Opinion of Counsel” means an opinion in writing of legal counsel, who may be an Officer or employee of or counsel for the Company or any Guarantor that is delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 13.06, if and to the extent required by the provisions thereof.
“Original Issue Discount Security” means a Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
“Outstanding”, when used with reference to Securities of any series, subject to the provisions of Section 8.04, means, as of any particular time, all Securities of such series authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
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(b) Securities, or portions thereof, for the payment or redemption of which funds in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent other than the Company, or, if the Company shall act as its own paying agent, shall have been set aside, segregated and held in trust by the Company for the Holders of such Securities, provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.07, except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Company.
In determining whether the Holders of the requisite principal amount of Outstanding Securities of any series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01 and the principal amount of a Security denominated in one or more currencies that shall be deemed to be Outstanding for such purposes shall be based on the Dollar Equivalent as determined by the Company on the date of original issuance of such Security, of the principal amount of such Security; provided, that any Securities of such series owned by the Company, or by any Affiliate of the Company, shall be considered as though not Outstanding.
“Parent” means STERIS plc, a public limited company incorporated under the laws of Ireland, until a successor entity shall have become such pursuant to Article X, and thereafter “Parent” shall mean such successor entity.
“Participant”, with respect to the Depositary, Euroclear or Clearstream, means a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).
“Periodic Offering” means an offering of Securities of a series from time to time, during which any or all of the specific terms of the Securities, including the rate or rates of interest, if any, thereon, the maturity or maturities thereof and the redemption provisions, if any, with respect thereto, are to be determined by the Company or its agents upon the issuance of such Securities in accordance with the terms of the relevant Supplemental Indenture.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government, any agency or political subdivision thereof or any other entity.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Private Placement Legend” means the legend set forth in Section 2.02(b) to be placed on all Restricted Securities issued under this Indenture or pursuant to a Board Resolution or an indenture supplemental hereto with respect to a series of Securities, except where specifically stated otherwise by the provisions of this Indenture, such Board Resolution or such supplemental indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
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“Regulation S” means Regulation S promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
“Regulation S Global Security” means, with respect to any series of Securities, a Regulation S Temporary Global Security of such series, if required by Rule 903 of Regulation S, or a Regulation S Permanent Global Security of such series, as the case may be.
“Regulation S Permanent Global Security”, with respect to any series of Securities, means one or more permanent Global Securities, bearing the Private Placement Legend, that will be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Securities of such series initially sold or, if required by Rule 903 of Regulation S, of the Regulation S Temporary Global Security of such series upon expiration of the Distribution Compliance Period with respect to such series, as the case may be.
“Regulation S Temporary Global Security”, with respect to any series of Securities, means one or more temporary Global Securities, bearing the Private Placement Legend, and the Regulation S Temporary Global Security Legend issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Securities of such series initially sold, if required by Rule 903 of Regulation S.
“Regulation S Temporary Global Security Legend” means the legend set forth in Section 2.02(d), which is required to be placed on all Regulation S Temporary Global Securities issued under this Indenture.
“Responsible Officer” means any officer of the Trustee in its Corporate Trust Office, and also means any vice president, any assistant trust officer, any assistant vice president, any assistant treasurer, any assistant secretary or any other officer of the Trustee customarily performing functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Definitive Security”, with respect to any series of Securities, means one or more Definitive Securities of such series bearing the Private Placement Legend issued under this Indenture.
“Restricted Global Security”, with respect to any series of Securities, means one or more Global Securities of such series bearing the Private Placement Legend, issued under this Indenture.
“Restricted Security”, with respect to any series of Securities, means a Security of such series, unless or until it has been (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act (or any similar provision then in force).
“Rule 144A” means Rule 144A promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
“Securities” means the securities authenticated and delivered under this Indenture.
“Securityholder,” “Holder,” “holder,” “holder of Securities,” “registered holder,” or other similar term, means the Person or Persons in whose name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
“Security Register” has the meaning set forth in Section 2.05(a).
“Security Registrar” has the meaning set forth in Section 2.05(a).
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of Parent within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
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“Stated Maturity”, with respect to any Security, means the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the Holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).
“Subsidiary” of any Person means (1) any corporation, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or Persons performing similar functions) or (2) any partnership, joint venture limited liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is, in the case of clauses (1) and (2), at the time owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of Parent.
“Subsidiary Guarantor” means any Guarantor that is a Subsidiary of Parent.
“Successor Company” has the meaning set forth in Section 10.01.
“Successor Guarantor” has the meaning set forth in Section 10.02.
“Tax” means any tax, duty, assessment or other governmental charge of whatever nature (including related penalties, interest and any other liabilities related thereto, and, for the avoidance of doubt, including any withholding or deduction for or on account of any of the foregoing). “Taxes” shall be construed to have a corresponding meaning.
“Taxing Jurisdiction” has the meaning set forth in Section 14.02.
“Trustee” means U.S. Bank National Association and, subject to the provisions of Article VII, shall include its successors and assigns. The term “Trustee” as used with respect to a particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as in effect at the date of execution of this instrument subject to the provisions of Sections 9.01, 9.02, and 10.01.
“Unrestricted Definitive Security”, with respect to any series of Securities, means one or more Definitive Securities representing such series of Securities that do not bear and are not required to bear the Private Placement Legend, issued under this Indenture.
“Unrestricted Global Security”, with respect to any series of Securities, means one or more permanent Global Securities representing such series of Securities that do not bear and are not required to bear the Private Placement Legend, issued under this Indenture.
“Unrestricted Securities”, with respect to any series of Securities, means a Security (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act (or any similar provision then in force).
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ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officer’s Certificate of the Company, or established in one or more indentures supplemental hereto, with respect to the Securities of the series:
(1) the title of the Security of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, other Securities of that series);
(3) the date or dates on which the principal and premium, if any, of the Securities of the series is payable;
(4) the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear interest or the manner of calculation of such rate or rates, if any (including any procedures to vary or reset such rate or rates), and the basis upon which interest will be calculated if other than that of a 360 day year of twelve 30-day months;
(5) the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates, and the record date for the determination of Holders to whom interest is payable on any such Interest Payment Dates;
(6) any trustees, authenticating agents or paying agents with respect to such series, if different from those set forth in this Indenture;
(7) the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension or deferral;
(8) the period or periods within which, the price or prices at which and the terms and conditions upon which, Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions (including payments made in cash in anticipation of future sinking fund obligations) or at the option of a Holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(10) the form of the Securities of the series including the form of the Trustee’s certificate of authentication for such series;
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(11) if other than denominations of $150,000 or any integral multiple thereof, the denominations in which the Securities of the series shall be issuable, provided however, that all Securities of any series shall be offered or allotted in minimum denominations, or for a minimum total consideration per investor, of at least €100,000 (or, if offered in another currency, the equivalent thereof) or as otherwise permitted by section 68(3) of the Companies Act 2014 of Ireland, as amended;
(12) the Currency or Currencies in which payment of the principal of, premium, if any, and interest on, Securities of the series shall be payable;
(13) if the principal amount payable at the Stated Maturity of Securities of the series will not be determinable as of any one or more dates prior to such Stated Maturity, the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof which will be due and payable upon any maturity other than the Stated Maturity or which will be deemed to be Outstanding as of any such date (or, in any such case, the manner in which such deemed principal amount is to be determined);
(14) the terms of any repurchase or remarketing rights;
(15) if the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities, the type of Global Security to be issued; the terms and conditions, if different from those contained in this Indenture, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities in definitive registered form; the Depositary for such Global Security or Securities; and the form of any legend or legends to be borne by any such Global Security or Securities in addition to or in lieu of the legends referred to in Section 2.02;
(16) whether the Securities of the series will be convertible into or exchangeable for other Securities, common shares or other securities of any kind of the Company or another obligor, and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the Holder or at the Company’s option, the conversion or exchange period, and any other provision in addition to or in lieu of those described herein;
(17) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(18) any additional restrictive covenants or Events of Default that will apply to the Securities of the series, or any changes to the restrictive covenants set forth in Article IV or the Events of Default set forth in Section 6.01 that will apply to the Securities of the series, which may consist of establishing different terms or provisions from those set forth in Article IV or Section 6.01 or eliminating any such restrictive covenant or Event of Default with respect to the Securities of the series;
(19) any provisions granting special rights to Holders when a specified event occurs;
(20) if the amount of principal or any premium or interest on Securities of a series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined;
(21) any special tax implications of the Securities, including provisions for Original Issue Discount Securities, if offered;
(22) whether and upon what terms Securities of a series may be defeased if different from the provisions set forth in this Indenture;
(23) with regard to the Securities of any series that do not bear interest, the dates for certain required reports to the Trustee;
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(24) whether the Securities of the series will be issued as Unrestricted Securities or Restricted Securities, and, if issued as Restricted Securities, the rule or regulation promulgated under the Securities Act in reliance on which they will be sold; and
(25) any and all additional, eliminated or changed terms that shall apply to the Securities of the series, including any terms that may be required by or advisable under United States laws or regulations (including the Securities Act and the rules and regulations promulgated thereunder) or advisable in connection with the marketing of Securities of that series.
(b) All Securities of any one series shall be substantially identical, except that Securities of any particular series may be issued at various times, in different denominations, with different currency of payments due thereunder, with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different methods by which rates of interest may be determined, with different dates from which such interest may accrue or on which such interest may be payable, and with different redemption dates, and except as may otherwise be provided in or pursuant to any such Board Resolution or in any supplemental indenture. If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series. The terms of the Securities of any series may provide that such Securities shall be authenticated and delivered by the Trustee upon original issuance from time to time upon written order of persons designated in such Board Resolution or supplemental indenture and that such persons are authorized to determine, consistent with such Board Resolution or supplemental indenture, such terms and conditions of the Securities of such series.
Section 2.02. Form of Securities and Trustee’s Certificate.
(a) The Securities of any series and the Trustee’s certificate of authentication to be borne by such Securities shall be substantially of the tenor as set forth in an indenture supplemental hereto or as provided in a Board Resolution of the Company and as set forth in an Officer’s Certificate of the Company and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, any Board Resolution or any indenture supplemental hereto, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that series may be listed, or to conform to usage.
(b) Each Restricted Security (and all Restricted Securities issued in exchange therefor or substitution thereof) shall bear a Private Placement Legend in substantially the following form:
“THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE “SECURITIES ACT”). THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (IV) PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.”
(c) To the extent required by the Depositary for particular series of Securities, each Global Security of such series shall bear legends in substantially the following forms:
“THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE ANY SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.05(C) OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”
“UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR TO ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF ANY ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO SUCH ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF HAS AN INTEREST HEREIN.”
(d) To the extent required by the Depositary, each Regulation S Temporary Global Security shall bear a legend in substantially the following form:
“THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY SECURITY SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS SECURITY. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS SECURITY.”
Section 2.03. Denominations; Provisions for Payment.
The Securities shall be issuable as registered Securities and in the denominations of $150,000 and integral multiples of $1,000 in excess thereof, provided however, that all Securities of any series shall be offered or allotted in minimum denominations, or for a minimum total consideration per investor, of at least €100,000 (or, if offered in another currency, the equivalent thereof) or as otherwise permitted by section 68(3) of the Companies Act 2014 of Ireland, as amended. The Securities of a particular series shall bear interest payable on the dates and at the
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rate specified as provided in Section 2.01 with respect to that series. The principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in Dollars except as otherwise specified pursuant to Section 2.01(a)(12), at the office or agency of the Company maintained for that purpose pursuant to Section 4.02. If any of the Securities of any series is no longer represented by a Global Security, payment of interest on Definitive Securities may, at the option of the Company, be made by (i) check mailed directly to Holders of such Securities at their addresses set forth in the Security Register or (ii) upon request of any Holder of at least $1,000,000 principal amount of such Securities, wire transfer to an account located in the United States maintained by the payee. Each Security shall be dated the date of its authentication. Unless otherwise specified with respect to a series of Securities in accordance with the provisions of Section 2.01(a)(4), interest on the Securities shall be computed on the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for Securities of that series shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment. In the event that any Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security will be paid upon presentation and surrender of such Security as provided in Section 3.03.
Unless otherwise set forth in a Board Resolution or one or more indentures supplemental hereto establishing the terms of any series of any Securities pursuant to Section 2.01, the term “regular record date” as used in this Section 2.03 with respect to a series of Securities shall mean a date 15 days immediately preceding any Interest Payment Date. Subject to the provisions of this Section 2.03, each Security of a series delivered under this Indenture upon registration of transfer or in exchange for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
Unless otherwise specified with respect to a series of Securities in accordance with the provisions of Section 2.01, any interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for such Security (“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant regular record date, and such Defaulted Interest shall be paid by the Company, at the rate provided for in such series of Securities and at its election, as provided in clause (1) or clause (2) below.
(1) The Company may make payment of any Defaulted Interest on Securities to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the Trustee, in writing, of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee funds in an amount equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such funds when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1). Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment. The Trustee promptly shall notify the Company of such special record date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid (or otherwise delivered in accordance with the procedures of DTC), to each Securityholder at his or her address as it appears in the Security Register, not less than ten days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been mailed or otherwise delivered as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date and shall not be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange.
Section 2.04. Execution and Authentications.
The Securities shall be signed on behalf of the Company by any member of the Board of Directors of the Company or by any of its president, chief financial officer, vice president, secretary or treasurer of the Company. Signatures may be in the form of a manual or facsimile signature. In the case of Definitive Securities of any series, such signatures may be imprinted or otherwise reproduced on such Securities. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an authorized signatory of the Trustee or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities, signed by an Officer (an “Authentication Order”), and the Trustee in accordance with such written order shall authenticate and deliver such Securities, without any further action by the Company hereunder. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and shall be fully protected in conclusively relying upon:
(a) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and if the terms and form of such Securities are established by an Officer’s Certificate pursuant to general authorization of the Board of Directors, such Officer’s Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officer’s Certificate delivered in accordance with Section 13.06 of this Indenture; and
(d) an Opinion of Counsel which shall state:
(1) that the form of such Securities has been established by a supplemental indenture or by or pursuant to a resolution of the Board of Directors and in conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in accordance with Section 2.01 and in conformity with the other provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and
(4) that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with.
The Trustee shall not be required, and shall have the right to decline, to authenticate and deliver any Securities pursuant to this Indenture if such Securities (a) will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture; (b) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; (c) if the Trustee, in good faith, determines that such action would expose the Trustee to personal liability to existing Holders, or (d) is in such a manner that is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of Section 2.01 and the preceding paragraph, in the case of Securities offered in a Periodic Offering, the Trustee shall authenticate and deliver such Securities from time to time in accordance with instructions or such other procedures acceptable to the Trustee as may be specified by or pursuant to a supplemental indenture or the written order of the Company delivered to the Trustee prior to the time of the first authentication of Securities of such series. With respect to Securities of a series subject to a Periodic Offering, the Trustee may conclusively rely, as to the authorization by the Company of any of such Securities, the forms and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the written order of the Company, Opinion of Counsel, Officer’s Certificate and other documents delivered pursuant to this Section 2.04 at or prior to the time of the first authentication of Securities of such series unless and until such written order, Opinion of Counsel, Officer’s Certificate or other documents have been superseded or revoked or expire by their terms.
Section 2.05. Transfer and Exchange.
(a) Registration of Transfer and Exchange. The Company shall keep, or cause to be kept, at its office or agency designated for such purpose as provided in Section 4.02, a register or registers (the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as provided in this Article II and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Securities and the transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”). If the Company fails to appoint or maintain another entity as Security Registrar, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Security Registrar.
To permit registrations of transfers and exchanges, the Company shall execute a new Security or Securities of the same series as the Security presented for a like aggregate principal amount and in authorized denominations and the Trustee shall authenticate and deliver such Security or Securities upon receipt of an Authentication Order. The Trustee shall not be required to register the transfer of or exchange any Security selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid Obligations of the Company evidencing the same indebtedness, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Prior to such due presentment for the registration of a transfer of any Security, the Trustee, the Company, any paying agent and the Security Registrar may deem and treat the Person in whose name any Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of and interest on such Securities and for all other purposes, and none of the Trustee, the Company, the paying agent or the Security Registrar shall be affected by notice to the contrary. The Company is not required to transfer or exchange any Security of any series selected for redemption during a period of 15 days before mailing or otherwise delivering a notice of redemption of Securities of such series to be redeemed.
All certifications, certificates and opinions of counsel required to be submitted to the Trustee pursuant to this Section 2.05 to effect a registration of transfer or exchange may be submitted by facsimile or electronic transfer.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security or Securities other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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(b) Service Charge. No service charge shall be payable by a holder of a beneficial interest in a Global Security or by a Holder of a Definitive Security for any exchange or registration of transfer of Securities, or for any issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith (other than any such taxes or other governmental charge payable upon exchange or registration of transfer pursuant to Sections 2.06, 3.03(b) and 9.04).
(c) Transfer and Exchange of Global Securities. A Global Security may not be transferred except as a whole by the Depositary for a series of the Securities to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or to another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for a series of the Securities or a nominee of such successor Depositary. If at any time the Depositary for a series of the Securities notifies the Company that it is unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act or other applicable statute or regulation, and a successor Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, the provisions of Section 2.11 shall no longer be applicable to the Securities of such series. In addition, the Company may at any time determine that the Securities of any series shall no longer be represented by a Global Security and that the provisions of Section 2.11 shall no longer apply to the Securities of such series. In either such event the Company will execute the Definitive Securities of such series, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Security of such series and subject to this Section 2.05 the Trustee, upon receipt of an Officer’s Certificate evidencing such determination by the Company, if applicable, will authenticate and deliver such Definitive Securities in exchange for such Global Security. Upon the exchange of the Global Security of such series for such Definitive Securities of such series, the Global Security shall be canceled by the Trustee. Such Definitive Securities shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its Participants or Indirect Participants or otherwise, shall in writing instruct the Trustee. The Trustee shall deliver such Securities to the Depositary for delivery to the Persons in whose names such Securities are so registered.
Except as provided in Sections 2.06 and 2.07, a Global Security may not be exchanged for another Security other than as provided in this Section 2.05(c); however, beneficial interests in a Global Security may be transferred and exchanged as provided in Section 2.05(d) or (e). The provisions of this Section 2.05(c) are subject to Section 2.11.
(d) Transfer and Exchange of Beneficial Interests in the Global Securities. The transfer and exchange of beneficial interests in the Global Securities of a series shall be effected through the Depositary, in accordance with the provisions of this Indenture, any Board Resolution and any one or more indentures supplemental hereto, and the Applicable Procedures. Beneficial interests in the Restricted Global Securities of a series shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Securities also shall require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(1) Transfer of Beneficial Interests in the Same Global Security. Beneficial interests in any Restricted Global Security of a series may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Security in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Security of a series may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series. Subject to Section 2.05(e)(4), no written orders or instructions shall be required to be delivered to the Security Registrar to effect the transfers described in this Section 2.05(d)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global Securities. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.05(d)(1) above, the transferor of such beneficial interest must deliver to the Security Registrar, as applicable, either:
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(A) (1) an order from a Participant or an Indirect Participant given to the Depositary in accordance with the relevant Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Security of such series in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the relevant Applicable Procedures containing information regarding the Participant account to be credited with such increase; or
(B) (1) an order from a Participant or an Indirect Participant given to the Depositary in accordance with the relevant Applicable Procedures directing the Depositary to cause to be issued a Definitive Security of such series in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Security Registrar containing information regarding the Person in whose name such Definitive Security shall be registered to effect the transfer or exchange referred to in (B)(1) above;
provided that in no event shall Definitive Securities of a series be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Security of such series prior to (y) the expiration of the relevant Distribution Compliance Period and (z) the receipt by the Security Registrar of any certificates identified by the Company or its counsel to be required pursuant to Rule 903 and Rule 904 under the Securities Act. Upon satisfaction of all the requirements for transfer and exchange of beneficial interests in Global Securities of a series contained in this Indenture, any Board Resolution, or one or more indentures supplemental hereto and the Securities of such series or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Security or Securities of such series pursuant to Section 2.05(h).
(3) Transfer of Beneficial Interests to Another Restricted Global Security. A beneficial interest in any Restricted Global Security of a series may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Security of the same series if the transfer complies with the requirements of Section 2.05(d)(2) and the Security Registrar receives a completed certificate in the form of Exhibit A.
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Security for Beneficial Interests in an Unrestricted Global Security. A beneficial interest in any Restricted Global Security of any series may be exchanged by any Holder thereof for a beneficial interest in an Unrestricted Global Security of such series or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series if the exchange or transfer complies with the requirements of Section 2.05(d)(2) above and the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Security Registrar and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global Security of such series has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall authenticate one or more Unrestricted Global Securities of such series in an aggregate principal amount equal to the aggregate principal amount of beneficial interests so transferred. Beneficial interests in an Unrestricted Global Security of a series cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Security of such series.
(e) Transfer or Exchange of Beneficial Interests for Definitive Securities.
(1) Beneficial Interests in Restricted Global Securities to Restricted Definitive Securities. If any holder of a beneficial interest in a Restricted Global Security of a series proposes to exchange such beneficial interest for a Restricted Definitive Security of such series or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Security of such series, then, upon receipt by the Security Registrar of a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and certificates and opinions of counsel, if applicable, the
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Trustee shall cause the aggregate principal amount of the applicable Restricted Global Security of such series to be reduced accordingly pursuant to Section 2.05(h), and the Company shall execute a Restricted Definitive Security of such series in the appropriate principal amount and, upon receipt of an Authentication Order pursuant to Section 2.04, the Trustee shall authenticate and deliver to the Person designated in the instructions such Restricted Definitive Security. Any Restricted Definitive Security of such series issued in exchange for a beneficial interest in a Restricted Global Security of such series pursuant to this Section 2.05(e) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary for such series and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Securities of such series to the Persons in whose names such Securities are so registered. Any Restricted Definitive Security of such series issued in exchange for a beneficial interest in a Restricted Global Security of such series pursuant to this Section 2.05(e)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Securities to Unrestricted Definitive Securities. A holder of a beneficial interest in a Restricted Global Security of a series may exchange such beneficial interest for an Unrestricted Definitive Security of such series or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such series only if the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Security Registrar and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Securities to Unrestricted Definitive Securities. If any holder of a beneficial interest in an Unrestricted Global Security of a series proposes to exchange such beneficial interest for an Unrestricted Definitive Security of such series or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such series, then, upon satisfaction of the conditions set forth in Section 2.05(d)(2), the Trustee shall cause the aggregate principal amount of the applicable Unrestricted Global Security of such series to be reduced accordingly pursuant to Section 2.05(h), and the Company shall execute an Unrestricted Definitive Security of such series in the appropriate principal amount and, upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall authenticate and deliver to the Person designated in the instructions such Unrestricted Definitive Security. Any Unrestricted Definitive Security issued in exchange for a beneficial interest pursuant to this Section 2.05(e)(3) shall be registered in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary for such series and the Participant or Indirect Participant. The Trustee shall deliver such Unrestricted Definitive Securities to the Persons in whose names such Securities are so registered. Any Unrestricted Definitive Security issued in exchange for a beneficial interest pursuant to this Section 2.05(e)(3) shall not bear the Private Placement Legend.
(4) Transfer or Exchange of Regulation S Temporary Global Securities. Notwithstanding the other provisions of this Section 2.05, a beneficial interest in the Regulation S Temporary Global Security of a series may not be (A) exchanged for a Definitive Security of such series prior to (y) the expiration of the Distribution Compliance Period with respect to such series (unless such exchange is effected by the Company, does not require an investment decision on the part of the Holder thereof and does not violate the provisions of Regulation S) and (z) the receipt by the Security Registrar of any certificates identified by the Company or its counsel to be required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a U.S. person (as such term is defined in Regulation S) or for the account or benefit of a U.S. person (other than an initial purchaser of such Regulation S Temporary Global Security) or a Person who takes delivery thereof in the form of a Definitive Security of such series prior to the events set forth in clause (A) above or unless the transfer is pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or 904.
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(f) Transfer and Exchange of Definitive Securities for Beneficial Interests.
(1) Restricted Definitive Securities to Beneficial Interests in Restricted Global Securities. If any Holder of a Restricted Definitive Security of a series proposes to exchange such Security for a beneficial interest in a Restricted Global Security of such series or to transfer such Restricted Definitive Securities of such series to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Security of such series, then, upon receipt by the Trustee of the following documentation:
(A) if the Holder of such Restricted Definitive Security of such series proposes to exchange such Security for a beneficial interest in a Restricted Global Security of such series, a completed certificate from such Holder in the form of Exhibit B; or
(B) if such Restricted Definitive Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act or to a non-U.S. person in an offshore transaction in accordance with Rule 903 or 904 under the Securities Act, a completed certificate to that effect set forth in Exhibit A, the Trustee shall cancel the Restricted Definitive Security of such series, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Security of such series and, in the case of clause (B) above, the 144A Global Security of such series or the Regulation S Global Security of such series as applicable.
(2) Restricted Definitive Securities to Beneficial Interests in Unrestricted Global Securities. A Holder of a Restricted Definitive Security of a series may exchange such Security for a beneficial interest in an Unrestricted Global Security of such series or transfer such Restricted Definitive Security of such series to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series only if the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable, and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Security Registrar and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.05(f)(2), the Trustee shall cancel the Restricted Definitive Securities of such series so transferred or exchanged and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Security of such series.
(3) Unrestricted Definitive Securities to Beneficial Interests in Unrestricted Global Securities. A Holder of an Unrestricted Definitive Security of a series may exchange such Security for a beneficial interest in an Unrestricted Global Security of such series or transfer such Definitive Securities of such series to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security of such series at any time. Upon receipt of a written request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Security and increase or cause or be increased the aggregate principal amount of one of the Unrestricted Global Securities of such series. If any such exchange or transfer from a Definitive Security of a series to a beneficial interest is effected pursuant to subparagraphs (2) or (3) of this Section 2.05(f) at a time when an Unrestricted Global Security of such series has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.04, the Trustee shall authenticate one or more Unrestricted Global Securities of such series in an aggregate principal amount equal to the principal amount of Definitive Securities of such series so transferred.
(g) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon written request by a Holder of Definitive Securities of a series and such Holder’s compliance with the provisions of this Section 2.05(g), the Trustee shall register the transfer or exchange of Definitive Securities of such series pursuant to the provisions of Section 2.05(a). In addition to the requirements set forth in Section 2.05(a), the requesting Holder shall provide any additional certifications, documents, and information, as applicable, required pursuant to the following provisions of this Section 2.05(g).
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(1) Restricted Definitive Securities to Restricted Definitive Securities. Any Restricted Definitive Security of a series may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Security of such series if the Trustee receives a completed certificate in the form of Exhibit A, including the certifications, certificates and opinions of counsel required by item (3) thereof, if applicable.
(2) Restricted Definitive Securities to Unrestricted Definitive Securities. Any Restricted Definitive Security of a series may be exchanged by the Holder thereof for an Unrestricted Definitive Security of such series or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Security of such series if the Security Registrar receives a completed certificate from such Holder in the form of Exhibit A or Exhibit B, as applicable and an opinion of counsel in form, and from legal counsel, reasonably acceptable to the Trustee and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
(3) Unrestricted Definitive Securities to Unrestricted Definitive Securities. A Holder of Unrestricted Definitive Securities of a series may transfer such Securities to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security of such series in accordance with subsection 2.05(a). Upon receipt of a request to register such a transfer, the Security Registrar shall register the Unrestricted Definitive Securities of such series pursuant to the instructions from the Holder thereof.
(h) Cancellation and/or Adjustment of Global Securities. At such time as all beneficial interests in a particular Global Security of a series have been exchanged for Definitive Securities of such series or a particular Global Security of a series has been redeemed, repurchased or cancelled in whole and not in part, each such Global Security of such series shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.08. At any time prior to such cancellation, if any beneficial interest in a Global Security of such series is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security of such series or for Definitive Securities of such series, the principal amount of Securities of such series represented by such Global Security shall be reduced accordingly and an endorsement may be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Security of such series, such other Global Security shall be increased accordingly and an endorsement may be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) No Exchange or Transfer. The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a period beginning at the opening of business 15 days before the day of the mailing (or otherwise delivery in accordance with the procedures of DTC) of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of business on the day of such mailing or other delivery, (ii) to register the transfer of or exchange any Securities of any series or portions thereof called for redemption, nor (iii) to register the transfer of or exchange a Security of any series between the applicable record date pursuant to Section 2.01 (a)(5) and the next succeeding Interest Payment Date.
Section 2.06. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute temporary Securities (printed, lithographed or typewritten) of any authorized denomination and the Trustee shall authenticate and deliver such Securities. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of such series may be surrendered in exchange therefor without charge to the Holders, at the office or agency of the Company maintained pursuant to Section 4.02 for the purpose of exchanges of Securities of such
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series, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further notice from the Company. Until so exchanged, temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute a new Security of the same series, bearing a number not contemporaneously outstanding in exchange and substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen and upon the Company’s written request the Trustee (subject to the next succeeding sentence) shall authenticate and deliver, such Security. In every case the applicant for a substituted Security shall furnish to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any Officer. Upon the issuance of any substituted Security, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company, instead of issuing a substitute Security, may pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this Section 2.07 shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All Securities shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.08. Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer, if surrendered to the Company or any paying agent, shall be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. Upon the written request of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled Securities held by the Trustee. If the Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.09. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the Holders of the Securities, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the Holders of the Securities.
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Section 2.10. Authenticating Agent.
So long as any of the Securities of any series remain Outstanding, there may be an Authenticating Agent for any or all such series of Securities which the Trustee shall have the right to appoint. The Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series, including Securities issued upon exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by Federal or State authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately. Any Authenticating Agent may resign at any time by giving written notice of resignation to the Trustee and to the Company. The Trustee at any time may, and upon written request by the Company shall, terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
Section 2.11. Global Securities.
(a) General. If the Company shall establish pursuant to Section 2.01 that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute one or more Global Securities that (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee and (iii) shall be delivered to the Trustee as custodian for the Depositary or otherwise delivered pursuant to the Depositary’s instructions and the Trustee in accordance with Section 2.04 shall authenticate such Global Security or Global Securities.
(b) Euroclear and Clearstream Procedures Applicable. The provisions of the “Operating Procedures of the Euroclear System” and the “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions” and “Customer Handbook” of Clearstream, respectively, in effect at the relevant time shall be applicable to transfers of beneficial interests in the Regulation S Global Securities of such series that are held by Participants through Euroclear or Clearstream.
Section 2.12. CUSIP Numbers.
The Company in issuing the Securities of a series may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee, in writing, of any change in the “CUSIP” numbers.
Section 2.13. Securities Denominated in Foreign Currencies.
Except as otherwise specified pursuant to Section 2.01 for Securities of any series, payment of the principal of, premium, if any, and interest on, Securities of such series denominated in any Foreign Currency will be made in such Foreign Currency by one or more paying agents appointed by the Company (each, a “Foreign Paying Agent”).
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In the event any Foreign Currency or Currencies in which any payment with respect to any series of Securities may be made ceases to be a freely convertible Currency on United States Currency markets, for any date thereafter on which payment of principal of, premium, if any, or interest on the Securities of a series is due, the Company shall select the Currency of payment for use on such date, all as provided in the Securities of such series, in a Board Resolution or in one or more indentures supplemental hereto. In such event, the Company shall notify the Foreign Paying Agent of the Currency which it has selected to constitute the funds necessary to meet the Company’s Obligations on such payment date and of the amount of such Currency to be paid. Such amount shall be determined as provided in the Securities of such series, in a Board Resolution or in one or more indentures supplemental hereto. The payment with respect to such payment date shall be deposited with the Foreign Paying Agent by the Company solely in the Currency so selected.
Section 2.14. Wire Transfers.
Notwithstanding any other provision to the contrary in this Indenture, the Company may make any payment required to be deposited with the Trustee on account of principal of, premium, if any, or interest on, the Securities by any method of wire transfer to an account designated in writing by the Trustee such that funds are available on or before the date such payment is to be made to the Holders of the Securities in accordance with the terms hereof.
Section 2.15. Designated Currency.
The Company may provide pursuant to Section 2.01 for Securities of any series that:
(a) the obligation, if any, of the Company to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or Dollars (the “Designated Currency”) as may be specified pursuant to Section 2.01(a)(12) is of the essence and agree that, to the fullest extent possible under applicable law, judgments in respect of Securities of such series shall be given in the Designated Currency;
(b) the obligation of the Company to make payments in the Designated Currency of the principal of, premium, if any, and interest on such Securities shall be discharged, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), only to the extent of the amount in the Designated Currency that the Securityholder receiving such payment, in accordance with normal banking procedures, may purchase with the amount paid in such other Currency after any premium and cost of exchange on the business day in the country of issue of the Designated Currency or in the international banking community immediately following the day on which such Securityholder receives such payment;
(c) if the amount in the Designated Currency that may be so purchased for any reason falls short of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and
(d) any obligation of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
Section 3.01. Redemption.
The Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for such series pursuant to Section 2.01 or 14.01.
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Section 3.02. Notice of Redemption; Partial Redemption.
(a) If the Company desires to exercise such right to redeem all or, as the case may be, a portion of the Securities of any series, the Company shall, or shall instruct the Trustee in writing to, give notice of such redemption to Holders of the Securities of such series to be redeemed by mailing (or otherwise delivery in accordance with the procedures of DTC), first class postage prepaid, a notice of such redemption not less than 10 days and not more than 60 days before the date fixed for redemption of that series to such Holders at their last addresses as they shall appear upon the Security Register (unless a shorter period is specified in the Securities to be redeemed). Any notice that is mailed (or otherwise delivered) in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered Holder receives the notice. Notices of redemption may be conditioned upon the occurrence of one or more subsequent events specified in the notice. The Trustee shall not have any duty to determine or verify the determination of whether any one or more of the conditions precedent have been satisfied. In any case, failure duly to give such notice to the Holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series or any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for redemption and the redemption price at which Securities of that series are to be redeemed, the CUSIP, ISIN or other similar numbers, if any, assigned to such Securities, and shall state that: (i) payment of the redemption price of such Securities to be redeemed will be made at the office or agency of the Company maintained for such purpose, or, if none, at the Corporate Trust Office of the Trustee, upon presentation and surrender of such Securities; (ii) interest accrued to the date fixed for redemption will be paid as specified in said notice; (iii) from and after said date interest will cease to accrue; (iv) the redemption is for a sinking fund, if such is the case; and (v) if in connection with a redemption of any series of Securities pursuant to the optional redemption terms set forth in the supplemental indenture or Board Resolution governing such series of Securities, as applicable, any condition to such redemption. If less than all the Securities of a series are to be redeemed, the notice to the Holders of Securities of that series to be redeemed in whole or in part shall specify the particular Securities to be so redeemed. In case any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If all or less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least 45 days’ written notice (unless a shorter period shall be satisfactory to the Trustee) in advance of the date fixed for redemption as to the aggregate principal amount of Securities of the series to be redeemed. If less than all the Securities are to be redeemed, the Trustee thereupon shall select from Securities of such series Outstanding not previously called for redemption, in accordance with DTC’s procedures (in such manner as complies with applicable legal and stock exchange requirements, if any) and that may provide for the selection of a portion or portions (equal to $150,000 or any integral multiples of $1,000 in excess thereof) of the principal amount of such Securities of such series of a denomination larger than $150,000, the Securities of such series to be redeemed. The Trustee promptly shall notify the Company in writing of the numbers of the Securities of such series to be redeemed, in whole or in part.
(c) A partial redemption of the Securities of the series to be redeemed may be selected pro rata or by lot in accordance with the applicable procedures of the Depositary or by such method as specified at the direction of the Issuer (equal to the minimum authorized denomination for such Securities or any integral multiple thereof) of the principal amount of such Securities of a denomination larger than the minimum authorized denomination for such Securities.
The Company, if and whenever it shall so elect, by delivery of instructions signed on its behalf by any of its Officers, may instruct the Trustee or any paying agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section 3.02, such notice to be in the name of the Company or its own name, as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section 3.02.
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Section 3.03. Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been completed as above provided, the Securities or portions of Securities of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, in each case as established pursuant to Section 2.01 or 14.01. Interest on such Securities or portions of Securities shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such redemption price and accrued interest with respect to any such Security or portion thereof. On presentation and surrender of such Securities on or after the date fixed for redemption at the place of payment specified in the notice, such Securities shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is an Interest Payment Date, the interest installment payable on such date shall be payable to the registered Holder at the close of business on the applicable record date pursuant to Section 2.01).
(b) Upon presentation of any Security of such series that is to be redeemed in part only, the Company shall execute a new Security of the same series and tenor of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented and the Trustee shall authenticate, and the office or agency where the Security is presented shall deliver to the Holder thereof, at the expense of the Company, such Security; except that if a Global Security is so surrendered, the Company shall execute a new Global Security of like tenor in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered and, upon receipt of an Officer’s Certificate requesting authentication and delivery, the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service charge, such Global Security.
Section 3.04. Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 3.05. Satisfaction of Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any Securities previously called for redemption) and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
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Section 3.06. Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that is to be satisfied by payment of cash in the Currency in which the Securities of such series are denominated (except as provided pursuant to Section 2.01), the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit. Together with such Officer’s Certificate, the Company will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
CERTAIN COVENANTS
The following covenants shall apply to the Securities, except with respect to any series of Securities for which the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series expressly provides that any such covenant shall not apply to such series of Securities:
Section 4.01. Payment of Principal, Premium and Interest.
The Company will pay or cause to be paid the principal of, premium, if any, and interest on the Securities of a series at the time and place and in the manner provided herein and established with respect to such Securities. Principal of, premium, if any and interest shall be considered paid on the date due if the paying agent, if other than one of the Company or a Subsidiary, holds as of 10:00 a.m., New York City time, on the date due, money deposited by the Company in immediately available funds and designated for and sufficient to pay the principal of, or premium, if any, and interest then due.
Section 4.02. Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company will maintain for such series an office or agency where Securities of such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such series and this Indenture may be given or served. Such designation will continue with respect to each office or agency until the Company, by written notice signed by any Officer and delivered to the Trustee, shall designate some other office or agency for such purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands. Unless otherwise specified in accordance with Section 2.01 with respect to a series of Securities, the Company initially designates the Corporate Trust Office of the Trustee as the office to be maintained by it for each such purpose.
Section 4.03. Paying Agents; Security Registrar
(a) The Company may appoint one or more paying agents, other than the Trustee, for all or any series of the Securities. If the Company fails to appoint or maintain another entity as paying agent, the Trustee shall act as such. The Company, any Guarantor or any of their Subsidiaries may act as paying agent. The Company hereby appoints the Trustee as the initial paying agent and the initial Security Registrar.
(b) The Company shall require each paying agent other than the Trustee to agree in writing that the paying agent will hold in trust for the benefit of Securityholders or the Trustee all funds held by the paying agent for the payment of principal, premium, if any, or interest on the Securities, and will promptly notify the Trustee, in writing, of any default by the Company in making any such payment. While any such default continues, the Trustee may require a paying agent to pay all funds held by it to the Trustee. The Company at any time may require a paying agent to pay all funds held by it to the Trustee. Upon payment over to the Trustee, the paying agent (if other than the Company, a Guarantor or any of their Subsidiaries) shall have no further liability for the funds. If the Company, any Guarantor or any of their Subsidiaries acts as paying agent, it shall segregate and hold in a separate trust fund for the benefit of the Securityholders all funds held by it as paying agent.
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(c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold funds in trust as provided in this Section 4.03 is subject to the provisions of Section 11.06, and (ii) the Company at any time, for the purpose of obtaining the satisfaction and discharge or defeasance of this Indenture or for any other purpose, may pay, or direct any paying agent to pay, to the Trustee all funds held in trust by the Company or such paying agent, such funds to be held by the Trustee upon the same terms and conditions as those upon which such funds were held by the Company or such paying agent. Upon such payment by any paying agent to the Trustee, such paying agent shall be released from all further liability with respect to such funds.
Section 4.04. Statement by Officers as to Default.
So long as any of the Securities remain outstanding, the Company will furnish to the Trustee within 120 days after the end of each fiscal year a brief certificate (which need not comply with Section 13.06) executed by the principal executive, financial or accounting officer of the Company or any member of the Board of Directors of the Company indicating whether the signers of such certificate know of any Default under this Indenture that occurred during the previous year. Such certificate need not include a reference to any Default that has been fully cured prior to the date as of which such certificate speaks.
The Company shall provide written notice to the Trustee within 30 days of the occurrence of any event, act or condition that would constitute a Default, describing the status of such Event of Default and describing what action the Company is taking or proposing to take with respect thereto.
Section 4.05. Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or to fill a vacancy in the office of the Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall be at all times a Trustee hereunder.
Section 4.06. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.01 in respect of the Securities of such series and a continuing Event of Default in the payment of interest or premium on, or principal of the Securities of such series, the Company may, with respect to Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to this Article IV and any additional covenants added pursuant to Section 2.01 or Article IX for the benefit of the Holders of such series, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall by written notice to the Company and the Trustee, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the Obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE V.
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) semi-annually at least seven Business Days before each Interest Payment Date for a series of Securities (and in all events at intervals of not more than six months) a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of each series of Securities as of such date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that the list shall not differ in any respect from the most recent list furnished to the
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Trustee by the Company and (b) at such other times as the Trustee may require in writing within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall be the Security Registrar.
Section 5.02. Preservation of Information; Communications with Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of Holders of Securities received by the Trustee in its capacity as Security Registrar (if acting in such capacity).
(b) Securityholders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the Securities.
Section 5.03. Reports by the Company.
(a) So long as any Securities are outstanding, the Company shall file with the Trustee, within 15 days after Parent files with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that Parent may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. The Company shall be deemed to have complied with the previous sentence to the extent that such information, documents and reports are filed with the Commission via EDGAR (or any successor electronic delivery procedure) or posted on Parent’s website; provided, that the Trustee shall have no obligation whatsoever to determine whether or not such documents or reports have been so filed.
(b) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 5.04. Reports by the Trustee.
(a) Any Trustee’s report required under Section 313(a) of the Trust Indenture Act shall be transmitted on or before March 15 in each year following the date hereof (commencing in 2015), so long as any Securities are Outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.
(b) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with the Company, with any stock exchange upon which any Securities are listed and with the Commission. The Company agrees to promptly notify the Trustee, in writing, when any Securities become listed on any stock exchange or delisted therefrom.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default.
(a) Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one or more of the following events that has occurred and is continuing, except with respect to any series of Securities for which the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series expressly provides that any such Event of Default shall not apply to such series of Securities:
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(1) a default in any payment of interest or Additional Amounts, if any, on any of the Securities of such series as and when the same shall become due, which continues for 30 days;
(2) a default in the payment of principal of or premium, if any, on any of the Securities of such series when due at its stated maturity date, upon optional redemption or otherwise;
(3) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series;
(4) a failure by the Company or any Guarantor to comply with their other agreements contained in this Indenture or any indenture supplemental hereto with respect to such series (other than a default or breach that is specifically dealt with elsewhere in this Section 6.01 or in such supplemental indenture), which continues for a period of 90 days after written notice thereof is given to the Company by the Trustee or to the Company and the Trustee by the holders of not less than 25% in principal amount of the Outstanding Securities of such series;
(5) a default under any debt for money borrowed by the Company or any Guarantor that results in acceleration of the maturity of such debt, or failure to pay any such debt within any applicable grace period after final stated maturity, in an aggregate amount of the greater of (a) $150.0 million, or (b) 3.0% of Consolidated Total Assets, or in each case, its foreign currency equivalent, at the time without such debt having been discharged or acceleration having been rescinded or annulled;
(6) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company, the Parent or any Significant Subsidiary (or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of Parent and its subsidiaries) would constitute a Significant Subsidiary) in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company, the Parent or such Significant Subsidiary or for any substantial part of its property or ordering the winding up or liquidation of its affairs (or any similar relief is granted under any foreign laws), and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days;
(7) the Company, the Parent or any Significant Subsidiary (or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of Parent and its subsidiaries) would constitute a Significant Subsidiary) shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, seek court protection, reorganization or other relief with respect of its debts under any law, consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment of or taking possession by a receiver, liquidator, examiner, assignee, custodian, trustee or sequestrator (or similar official) of the Company, the Parent or such Significant Subsidiary or for any substantial part of its property, or make any general assignment for the benefit of creditors (or takes any comparable action under any foreign laws relating to bankruptcy or insolvency);
(8) any guarantee of a Guarantor ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared null and void in a judicial proceeding or any Guarantor denies or disaffirms its obligations under this Indenture or its guarantee; and
(9) any other Event of Default provided in the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series.
(b) The foregoing will constitute an Event of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
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(c) In the case of an Event of Default specified in Section 6.01(a)(6) or Section 6.01(a)(7) occurs, the principal of and premium, if any, and accrued and unpaid interest on all Outstanding Securities will become due and payable immediately without further action or notice. If any other Event of Default as described herein shall have occurred and be continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of a series may declare, by notice to the Company in writing (and to the Trustee, if given by Holders of such Securities) specifying the Event of Default, to be immediately due and payable the principal amount of all such Securities then Outstanding, plus premium, if any, and accrued and unpaid interest to the date of acceleration.
(d) At any time after the principal of the Securities of that series shall have been so declared due and payable, and before any judgment or decree for the payment of the amount due shall have been obtained or entered as hereinafter provided, the Holders of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has or has caused to be paid or deposited with the Trustee an amount sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of and premium, if any, on any and all Securities of that series that shall have become due otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest, at the rate expressed in the Securities of that series to the date of such payment or deposit), and (ii) any and all Events of Default under this Indenture with respect to such series, other than the nonpayment of principal on Securities of that series that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.06. No such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(e) The Trustee shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the Security Register, notice by mail of all defaults actually known to a Responsible Officer that have occurred and are continuing with respect to such series, such notice to be transmitted within 90 days after it becomes actually known to a Responsible Officer of the Trustee; provided that, except in the case of default in the payment of the principal of, premium, if any, or interest on any of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee may withhold such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or trustees and/or Responsible Officers determines in good faith that the withholding of such notice is not opposed to the interests of the Securityholders of such series (it being understood that the Trustee does not have an affirmative duty to determine whether any direction is prejudicial to any Securityholder). Prior to taking any action under the Indenture, the Trustee will be entitled to, and if requested, be provided, indemnification or security satisfactory to it against any loss, liability, cost or expense caused by taking or not taking such action.
Section 6.02. Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (i) in case it shall default in the payment of any installment of interest on any of the Securities of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default shall have continued for a period of 30 days, or (ii) in case it shall default in the payment of the principal of, or premium, if any, on any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities of a series or upon redemption or upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holders of the Securities of that series, the whole amount that then shall have been become due and payable on all such Securities for principal, premium, if any, or interest, or both, with interest upon the overdue principal, premium, if any, and (to the extent that payment of such interest is enforceable under applicable law) upon overdue installments of interest at the rate expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the amounts so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any Guarantor and collect the amounts adjudged or decreed to be payable in the manner provided by law out of the property of the Company or such Guarantor, wherever situated.
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(c) In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, examinership, composition or judicial proceedings affecting the Company or any Guarantor or its respective creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted by the court and, except as otherwise provided by law, shall be entitled to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders of Securities of such series allowed for the entire amount due and payable by the Company under this Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any funds or other property payable or deliverable on any such claim, and to distribute the same in accordance with Section 6.03. Any receiver, assignee, examiner or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders of Securities of such series to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to such Securityholders, to pay to the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or under any of the terms established with respect to Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at any trial or other proceeding relative thereto. Any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable benefit of the Holders of the Securities of such series.
In case of an Event of Default, the Trustee in its discretion may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 6.03. Application of Funds Collected.
Any funds collected by the Trustee pursuant to this Article VI with respect to a particular series of Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such funds on account of principal, premium, if any, or interest, upon presentation of the Securities of that series, and notation thereon the payment, if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all amounts payable to the Trustee, acting in all of its capacities under this Indenture;
SECOND: To the payment of the amounts then due and unpaid upon Securities of such series for principal, premium, if any, and interest, in respect of which or for the benefit of which such funds have been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively; and
THIRD: To the Company.
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Section 6.04. Limitation on Suits.
If an Event of Default occurs and is continuing with respect to any series of Securities, the Trustee, in conformity with its duties under this Indenture, shall exercise all rights or powers under this Indenture at the request or direction of any of the Holders of such Securities, provided, that such Holders provide the Trustee with an indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest when due, no Holder of Securities of such Series may pursue any remedy with respect to this Indenture or such Securities unless (i) such Holder previously notified the Trustee that an Event of Default is continuing; (ii) Holders of at least 25% in aggregate principal amount of the Outstanding Securities of such series requested the Trustee to pursue the remedy; (iii) the requesting Holders of Securities of such Series offered the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense; (iv) the Trustee has not complied with such Holder’s request within 60 days after the receipt of the request and the offer of security or indemnity; and (v) the Holders of a majority in principal amount of the Outstanding Securities of such series have not given the Trustee a direction inconsistent with the request within the 60-day period.
Notwithstanding anything contained herein to the contrary, any other provisions of this Indenture, the right of any Holder of any Security to receive payment of the principal of, and premium, if any, and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute suit for the enforcement of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such Holder. By accepting a Security hereunder it is expressly understood, intended and covenanted by the taker and Holder of every Security of such series with every other such taker and Holder and the Trustee, that no one or more Holders of Securities of such series shall have any right in any manner whatsoever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of the Holders of any other of such Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of such series. For the protection and enforcement of the provisions of this Section 6.04, each Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 6.05. Rights and Remedies Cumulative; Delay or Omission not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies given by this Article VI to the Trustee or to the Securityholders, to the extent permitted by law, shall be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the Holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any Holder of any of the Securities to exercise any right or power accruing upon any Event of Default occurring and continuing shall impair any such right or power, or shall be construed to be a waiver of any such default or on acquiescence therein. Subject to the provisions of Section 6.04, every power and remedy given by this Article VI or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 6.06. Control by Securityholders.
The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with Section 8.04, shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to such series. The Trustee may, however, refuse to follow any direction that conflicts with law or this Indenture. In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of such series, each representing less than a majority in aggregate principal amount of the outstanding Securities of such series, the Trustee, in its sole discretion, may determine what action, if any, shall be taken and the Trustee may, in its sole discretion, take other actions.
The Holders of not less than a majority in aggregate principal amount of the Securities of any series at the time Outstanding affected thereby, determined in accordance with Section 8.04, on behalf of the Holders of all of the Securities of such series may waive any past Default in the performance of any of the covenants contained herein or established pursuant to Section 2.01 with respect to such series and its consequences, except a Default (1) in the payment of the principal of, premium, if any, or interest on, any of the Securities of that series as and when the same
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shall become due by the terms of such Securities otherwise than by acceleration and (2) in respect of a covenant or provision of this Indenture that cannot be modified or amended without the consent of the Holder of each Security of such series). Upon any such waiver, the Default covered thereby shall be deemed to be cured for every purpose of this Indenture and the Company, the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.07. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Securities by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.07 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than 10% in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of, premium, if any, or interest on any Security of such series, on or after the respective due dates expressed in such Security or established pursuant to this Indenture.
Section 6.08. Waiver of Usury, Stay or Extension of Laws.
Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities of Trustee.
(a) In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with respect to Securities of that series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to the Securities of a series and after the curing or waiving of all such Events of Default with respect to that series that may have occurred, the duties and obligations of the Trustee shall with respect to the Securities of such series be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and in the absence of gross negligence or willful misconduct on the part of the Trustee, the Trustee with respect to the Securities of such series may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such
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certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical computations or other facts stated therein);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officer of the Trustee, unless it shall be proved, in a final and non-appealable decision by a court of competent jurisdiction, that the Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture;
(4) whether or not therein provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Section;
(5) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any Security Registrar with respect to the Securities; and
(6) none of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Indenture or adequate indemnity against such risk is not reasonably assured to it.
Section 7.02. Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties, even if it contains errors or is later deemed not authentic.
(b) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Board Resolution or an instrument signed in the name of the Company by an Officer (unless other evidence in respect thereof is specifically prescribed herein).
(c) The Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon, and the Trustee shall not be responsible for the content of any Opinion of Counsel in connection with this Indenture, whether delivered to it or on its behalf.
(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee indemnity satisfactory to it against the costs, expenses, claims, loss and liabilities that may be incurred therein or thereby.
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(e) The Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture, provided, however, that the Trustee’s conduct does not constitute gross negligence.
(f) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, security or other papers or documents, but the Trustee, in its discretion, may make such further inquiry into such matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable notice and at reasonable times to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee.
(h) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
(j) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(k) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether such Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(l) The Trustee shall not be charged with knowledge of any Default or Event of Default with respect to the Securities, unless either (1) a Responsible Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of such Default or Event of Default shall have been received by the Trustee at its Corporate Trust Office by the Company or by any Holder of the Securities, and such notice references the Securities and this Indenture.
(m) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; nuclear or natural catastrophes; earthquakes, fires; floods, wars; civil or military disturbances; riots; sabotage; pandemics; epidemics; recognized public emergencies; quarantine restrictions; loss or malfunction of utilities; hacking; cyber-attacks or other infiltration of the Trustee’s technological infrastructure exceeding authorized access; riots; interruptions; loss or malfunctions of utilities or , computer (hardware or software) or communications services, accidents; labor disputes; strikes; work stoppages; accidents; acts of civil or military authority or governmental actions (it being understood that the Trustee shall use its best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances).
(n) The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
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(o) It shall not be the duty of the Trustee to see that any duties or obligations imposed herein upon the Company or other persons are performed, and the Trustee shall not be liable or responsible for the failure of the Company or such other persons to perform any act required of them by this Indenture.
(p) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(q) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.
Section 7.03. Trustee not Responsible for Recitals or Issuance of Securities.
(a) The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of any funds paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to Section 2.01, or for the use or application of any funds received by any paying agent other than the Trustee.
Section 7.04. May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying agent or Security Registrar. However, the Trustee is subject to Sections 7.09 and 7.13.
Section 7.05. Funds Held in Trust.
Subject to the provisions of Section 11.06, all funds received by the Trustee, until used or applied as herein provided, shall be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any funds received by it hereunder except such as it may agree with the Company to pay thereon.
Section 7.06. Compensation, Reimbursement and Indemnification.
(a) The Company shall pay to the Trustee, and the Trustee shall be entitled to be paid, such compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), as the Company and the Trustee from time to time may agree in writing, for all services rendered by it in the execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee. Except as otherwise expressly provided herein, the Company will pay or reimburse the Trustee upon its request for all reasonable expenses and disbursements incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense or disbursement as may arise from its own gross negligence or willful misconduct. The Company and each Guarantor, jointly and severally, shall indemnify the Trustee (and its officers, agents, directors and employees) for, and shall hold it harmless against, any and all loss, liability, claim, damage or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), incurred without gross negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust or in any other capacity hereunder, including the costs and expenses of defending itself against any claim of liability (whether asserted by the Company, any Holder or any other Person) in the premises or enforcing this Indenture, including this Section 7.06. The Trustee shall notify the Company and each applicable Guarantor
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promptly of any claim for which it may seek indemnity. Failure by the Trustee so to notify the Company and each applicable Guarantor shall not relieve the Company or any Guarantor of its obligations hereunder, except to the extent that the Company or any Guarantor has been prejudiced by such failure. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent shall not be unreasonably withheld or delayed.
(b) The obligations of the Company and the Guarantors under this Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses and disbursements shall: (i) be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities; and (ii) survive the termination of this Indenture and earlier resignation or removal of the Trustee.
Section 7.07. Reliance on Officer’s Certificate and other Documents.
Except as otherwise provided in Section 7.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed), in the absence of gross negligence or willful misconduct on the part of the Trustee, may be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such certificate, in the absence of gross negligence or willful misconduct on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States or any State or Territory thereof or of the District of Columbia, or a corporation or other Person permitted to act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal, State, Territorial, or District of Columbia authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 7.09 the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Affiliate of the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 7.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
Section 7.10. Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company no later than 30 days prior to the proposed date of resignation and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of such series. If no successor trustee shall have been so appointed and have accepted appointment within 30 days after the retiring Trustee resigns, the retiring Trustee, at the expense of the Company, or the Company may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide Holder of a Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any one of the following shall occur, the Company may remove the Trustee with respect to all or any series of Securities and appoint a successor trustee, or, unless the Trustee’s duty to resign is stayed as provided herein, any Securityholder who has been a bona fide holder of a Security or Securities for at least six months, on behalf of that Holder and all others similarly situated, may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee:
(1) the Trustee shall fail to comply with the provisions of Section 7.08 after written request therefor by the Company or by any Securityholder who has been a bona fide Holder of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and shall fail to resign after written request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation.
If an instrument of acceptance by a successor trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor trustee with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding at any time may remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor trustee for such series with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of a series pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section 7.10 may be appointed with respect to the Securities of one or more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
Section 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. Upon the written request of the Company or the successor trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall assign, transfer and deliver to such successor trustee all property and funds held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable
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to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any act or failure to act on the part of any other Trustee hereunder. Upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, and such retiring Trustee shall have no further responsibility with respect to the Securities of that or those series to which the appointment of such successor trustee relates for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture. Each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates. Upon the written request of the Company or any successor trustee, such retiring Trustee shall assign, transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and funds held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company may execute any and all instruments for more fully and certainly vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in Section 7.11 (a) or (b), as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee shall be qualified and eligible under this Article VII.
(e) Upon acceptance of appointment by a successor trustee as provided in this Section 7.11, the successor trustee shall cause a notice of its succession to be transmitted to Securityholders.
Section 7.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation or other entity shall be qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor trustee had itself authenticated such Securities.
Section 7.13. Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
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ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the Holders of a majority or specified percentage in aggregate principal amount of the Securities of a particular series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of taking any such action the Holders of such majority or specified percentage of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such Holders of Securities of that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice, consent, waiver or other action, the Company, at its option, as evidenced by an Officer’s Certificate, may fix in advance a record date for such series for the determination of Securityholders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
Section 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require notarization) or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of such Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter referred to in this Section as it shall deem necessary.
Section 8.03. Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security, the Company, the Trustee, any paying agent and any Security Registrar may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
None of the Company, the Trustee, any paying agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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Section 8.04. Certain Securities Owned by Company Disregarded.
In determining whether the Holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any direction, consent of waiver under this Indenture, the Securities of that series that are owned by the Company, any Guarantor or any other obligor on the Securities of that series or by an Affiliate of the Company or any Guarantor shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Securities of such series that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not an Affiliate. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Securities of a particular series, if any known by the Company or a Guarantor to be owned or held by or for the account of any of the above described Persons and, subject to Sections 7.01 and 7.02, the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities of such particular series not listed therein are Outstanding for the purpose of any such determination.
Section 8.05. Actions Binding on Future Securityholders.
At any time prior to the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the Holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any Holder of a Security of that series that is shown by the evidence to be included in the Securities the Holders of which have consented to such action, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, may revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the Holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the Holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this Indenture, the Company, the Guarantors and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, to correct any mistake, to correct or supplement any provision in this Indenture that may be defective or inconsistent with any other provision in this Indenture, or to make other provisions in regard to matters or questions arising under this Indenture;
(b) to evidence the succession of another Person to the Company or a Guarantor and the assumption by any such successor of the covenants, agreements, and obligations in this Indenture and in the Securities of a series in accordance with this Indenture;
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(c) to surrender any of the Company’s or the Guarantors’ rights or powers under this Indenture or add to the Company’s or Guarantors’ covenants further covenants for the protection of the holders of all or either series of Securities;
(d) to add any additional Events of Default for the benefit of the holders of all of any series of Securities;
(e) to add Guarantors or co-obligors with respect to the Securities, or to release Guarantors from the guarantees of the Securities in accordance with the terms of this Indenture and the Securities;
(f) to add collateral security with respect to the Securities of any series;
(g) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(h) make any change that does not adversely affect the rights of any holder of Securities;
(i) to add or appoint a successor or separate Trustee or other agent;
(j) to comply with any requirement in connection with the qualification of this Indenture under the Trust Indenture Act; or
(k) to conform any provision in this Indenture to the “Description of notes” (or similar) section of any prospectus prepared in connection with the issuance of any particular series of Securities, provided, that such amendment only affects such series, as set forth in the Officer’s Certificate.
Upon the written request of the Company and upon receipt by a Responsible Officer of the Trustee of the documents described in Section 9.05, the Trustee shall join with the Company and the Guarantors in the execution of any such supplemental indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed by the Company, the Guarantors and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
Section 9.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the Holders of not less than a majority in aggregate principal amount of the Securities of a series at the time Outstanding affected by such supplemental indenture or indentures, the Company, the Guarantors and the Trustee from time to time and at any time may enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as then in effect) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner not covered by Section 9.01 the rights of the Holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture, without the consent of the Holders of each Security of such series then Outstanding and affected thereby, shall (i) change the stated maturity of the principal of, or installment of interest on, any Security of such series; (ii) reduce the principal amount of, or the rate of interest on, any Security of such series; (iii) reduce any premium, if any, payable on the redemption or required repurchase of any Security of such series or change the date on which any Securities of such series may be redeemed or required to be repurchased; (iv) change the coin or currency in which the principal of, premium, if any, or interest on any Securities of such series is payable; (v) impair the right of any Holder of any Security of such series to institute suit for the enforcement of any payment of principal and interest (including Additional Amounts, if any) on such Holder’s Securities on or after the stated maturity of any Securities of such series; (vi) reduce the percentage in principal amount of the Outstanding Securities of such series, the consent of whose Holders is required in order to amend, modify or supplement this
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Indenture; (vii) modify any of the provisions of Section 4.06 or Section 6.06, except to increase any percentage of consents required or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; (viii) make any change to the provisions of Article XV of this Indenture in any manner adverse to the Holders of such Securities; (ix) make any change to the provisions of Article XIV of this Indenture that adversely affects the right of any Holder of such Securities in any material respect or amend the terms of such Securities in a way that would result in a loss of an exemption from any of the Taxes described thereunder or any exemption from any obligation to withhold or deduct Taxes so described thereunder unless the payor agrees to pay Additional Amounts, if any, in respect thereof; or (x) modify any of the provisions of this Section 9.02.
A supplemental indenture that changes or eliminates any covenant, Event of Default or other provision of this Indenture that has been expressly included solely for the benefit of one or more particular series of Securities, if any, or which modifies the rights of the Holders of Securities of such series with respect to such covenant, Event of Default or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of Securityholders of a series affected thereby under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company, the Guarantors and the Trustee of any supplemental indenture pursuant to the provisions of this Section 9.02, the Company shall mail or caused to be mailed (or otherwise deliver in accordance with the procedures of DTC) a notice thereof by first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the Security Register, setting forth in general terms the substance of such supplemental indenture. Any failure of the Company to mail or otherwise deliver such notice, or any defect therein, shall not in any way impair or affect the validity of any such supplemental indenture.
Section 9.03. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX or Section 10.01, this Indenture shall be and be deemed to be modified and amended with respect to such series in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company, the Guarantors and the Holders of Securities of the series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 9.04. Securities Affected by Supplemental Indentures.
Securities of any series affected by a supplemental indenture and authenticated and delivered after the execution of such supplemental indenture pursuant to the provisions of this Article or of Section 10.01 may bear a notation in form approved by the Company, provided such form meets the requirements of any exchange upon which such series may be listed, as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
Section 9.05. Execution of Supplemental Indentures.
Upon the written request of the Company and, if applicable, upon the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto as aforesaid, the Trustee shall join with the Company and the Guarantors in the execution of such supplemental indenture unless such supplemental indenture affects the
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Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee in its discretion may but shall not be obligated to enter into such supplemental indenture. The Trustee, subject to the provisions of Section 7.01, shall receive an Opinion of Counsel and Officer’s Certificate as conclusive evidence that any supplemental indenture executed pursuant to this Article IX is authorized or permitted by, and conforms to, the terms of this Article IX.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 9.05, the Trustee shall transmit by mail, first class postage prepaid, a notice, setting forth in general terms the substance of such supplemental indenture, such notice to be prepared by the Company, to the Securityholders of each series affected thereby as their names and addresses appear upon the Security Register. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR
Section 10.01. Consolidation, Merger and Sale of Assets by the Company.
The Company may, without the consent of the Holders of any Outstanding Securities, consolidate with or sell, lease or convey all or substantially all of its properties or assets to, or merge with or into, any other Person, provided, that:
(i) the Company is the continuing Person or, alternatively, the successor Person formed by or resulting from such consolidation or merger, or the Person that receives the transfer of such properties or assets (the “Successor Company”), is a corporation or limited liability company or similar entity organized under the laws of England and Wales, any member state of the European Economic Area or any state of the United States or the District of Columbia and expressly assumes by means of a supplemental indenture the Obligations of the Company under the Securities;
(ii) immediately after giving effect to such transaction, no Event of Default and no event that, after notice or the lapse of time, or both, would become an Event of Default has occurred and is continuing;
(iii) each Guarantor (unless it is the other party to the transactions described above, in which case the second succeeding paragraph shall apply) shall have by means of a supplemental indenture confirmed that its Guarantee shall apply to the Successor Company’s Obligations under this Indenture and the Securities; and
(iv) an Officer’s Certificate and Opinion of Counsel are delivered to the Trustee, each stating that the consolidation, merger, conveyance or transfer complies with clauses (i), (ii) and (iii) above.
The Successor Company will succeed to, and be substituted for, the Company, and may exercise all of the rights and powers of the Company, under this Indenture. In such a case, the Company will be relieved of all Obligations and covenants under the Securities and this Indenture, provided, that in the case of a lease of all or substantially all of the properties or assets of the Company, the Company will not be released from the obligation to pay the principal of and premium, if any, and interest on the Securities.
Section 10.02. Consolidation, Merger and Sale of Assets by a Guarantor.
Any Guarantor may, without the consent of the Holders of any Outstanding Securities, consolidate with or sell, lease or convey all or substantially all of its properties or assets to, or merge with or into, any other Person, provided, that:
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(i) such Guarantor is the continuing Person or, alternatively, the successor Person formed by or resulting from such consolidation or merger, or the Person that receives the transfer of such properties or assets (the “Successor Guarantor”), is a corporation or limited liability company or similar entity organized under the laws of England and Wales, any member state of the European Economic Area or any state of the United States or the District of Columbia and expressly assumes by means of a supplemental indenture the Obligations of such Guarantor under its Guarantee; provided, that this clause (i) shall not apply to any transaction in which the other party thereto is the Company or another Guarantor;
(ii) immediately after giving effect to such transaction, no Event of Default and no event that, after notice or the lapse of time, or both, would become an Event of Default has occurred and is continuing; and
(iii) an Officer’s Certificate and Opinion of Counsel are delivered to the Trustee, each stating that the consolidation, merger, conveyance or transfer complies with clauses (i) and (ii) above.
For the avoidance of doubt, any Guarantor whose Guarantee is to be released in accordance with the terms of such Guarantee shall not be required to comply with clause (i) of the immediately preceding paragraph.
The Successor Guarantor will succeed to, and be substituted for, such Guarantor, and may exercise all of the rights and powers of such Guarantor, under this Indenture. In such a case, such Guarantor will be relieved of all obligations and covenants under the Securities and this Indenture, provided, that in the case of a lease of all or substantially all of the properties or assets of such Guarantor, such Guarantor will not be released from its Guarantee.
ARTICLE XI
SATISFACTION AND DISCHARGE
Section 11.01. Applicability of Article.
If the Securities of a series are denominated and payable only in Dollars (except as provided pursuant to Section 2.01), then the provisions of this Article XI relating to defeasance of Securities shall be applicable except as otherwise specified pursuant to Section 2.01 for Securities of such series. Defeasance provisions, if any, for Securities denominated in a Foreign Currency may be specified pursuant to Section 2.01.
Section 11.02. Satisfaction and Discharge of Indenture.
If at any time:
(a) the Company or any Guarantor shall have delivered or shall have caused to be delivered to the Trustee for cancellation all Securities of a series theretofore authenticated (other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07) and Securities for whose payment funds or Governmental Obligations have theretofore been deposited in trust or segregated and held in trust by the Company or such Guarantor (and thereupon repaid to the Company or such Guarantor or discharged from such trust, as provided in Section 11.06); or
(b) all such Securities of a particular series not theretofore delivered to the Trustee for cancellation shall have become due and payable or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company or any Guarantor shall irrevocably deposit or cause to be deposited with the Trustee as trust funds the entire amount (in funds in Dollars or Governmental Obligations or a combination thereof) (except as otherwise provided pursuant to Section 2.01) sufficient to pay the entire Indebtedness including the principal and premium, if any, and interest to the date of such deposit (if such Securities have become due and payable) or to the maturity thereof or the date of redemption of such Securities, as the case may be; and
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(c) if in either case of clauses (a) or (b) above the Company or any Guarantor shall also pay or cause to be paid all other sums payable hereunder with respect to such series by the Company or any Guarantor, then this Indenture shall cease to be of further effect with respect to such series except for the provisions of Sections 2.05, 2.06, 2.07, 4.02, 4.03, 7.05, 7.10, 11.04 and 11.05, that shall survive until the date of maturity or redemption date, as the case may be, and Sections 7.06 and 11.06, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to such series.
Section 11.03. Defeasance and Discharge of Obligations; Covenant Defeasance.
(a) The Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in clause (c) of this Section 11.03, be deemed to have been discharged from their Obligations with respect to all Outstanding Securities of a series issued under this Indenture and Guarantees of such series issued under this Indenture on the date the conditions set forth below in clauses (i) through (vi) of Section 11.03(c) are satisfied with respect to such series (“legal defeasance”). For this purpose, legal defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Securities of such series, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 11.04 and the other Sections of this Indenture referred to below, and to have satisfied all its other Obligations under such Securities and this Indenture, including the Obligations of the Guarantors (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the provisions of Sections 2.05, 2.06, 2.07, 4.02, 7.05, 7.06, 7.10, 11.04, 11.05 and 11.06, which shall survive until otherwise terminated or discharged under this Indenture.
Subject to compliance with this Article 11, the Company may exercise its legal defeasance option under this clause (a) notwithstanding the prior exercise of its covenant defesance option under clause (b) of this Section 11.03.
(b) In addition, the Company, at its option and at any time, by written notice executed by an Officer delivered to the Trustee, may subject to satisfaction of the conditions set forth in clause (c) of this Section 11.03, elect to have its obligations and the obligations of the Guarantors, to the extent applicable to each, under Section 4.04 and Section 5.03 and each covenant contained in Article X, and any other covenant contained in the Board Resolution or supplemental indenture relating to such series pursuant to Section 2.01, discharged with respect to all Outstanding Securities of a series, this Indenture and any indentures supplemental to this Indenture insofar as such Securities are concerned (“covenant defeasance”), such discharge to be effective on the date the conditions set forth in clauses (i) through (vi) of clause (c) of this Section 11.03 are satisfied with respect to such series, and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration of Securityholders (and the consequences of any thereof) in connection with such covenants, but shall continue to be “Outstanding” for all other purposes under this Indenture. For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of a series, the Company and each Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 6.01(a)(4) or otherwise, and clauses (4), (5) and (8) of Section 6.01(a) shall no longer apply to such series, but except as specified in this Section 11.03(b), the remainder of the Company’s and the Guarantors’ obligations under the Securities of such series, this Indenture, and any indentures supplemental to this Indenture with respect to such series shall be unaffected thereby.
(c) The following shall be the conditions to the application of Section 11.03 to the Outstanding Securities of the applicable series:
(i) the Company or any Guarantor irrevocably deposits in trust with the Trustee or, at the option of the Trustee, with a trustee satisfactory to the Trustee and the Guarantors or the Company, as the case may be, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, an amount in funds, in Dollars or in Governmental Obligations or a combination thereof that through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient, as determined by a nationally recognized firm of certified public accountants, to pay the principal and premium, if any, and interest on such Securities on the scheduled due dates therefor
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(and the Company shall specify whether such Securities are being defeased to maturity or to a particular redemption date), provided that (A) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such funds or the proceeds of such Governmental Obligations to the Trustee and (B) the Trustee shall have been irrevocably instructed to apply such funds or the proceeds of such Governmental Obligations to the payment of said principal, premium, if any, and interest with respect to the Securities of such series;
(ii) the Company delivers to the Trustee an Officer’s Certificate stating that all conditions precedent specified herein relating to defeasance or covenant defeasance, as the case may be, have been complied with, and an Opinion of Counsel to the same effect;
(iii) no Default or Event of Default with respect to such series shall have occurred and be continuing on the date of such deposit (other than, if applicable, a Default or Event of Default with respect to that series of Securities resulting from the borrowing of funds to be applied to such deposit);
(iv) the Company shall have delivered to the Trustee (i) an Opinion of Counsel to the effect that the deposit and related legal defeasance or covenant defeasance will not cause the Holders and beneficial owners of the Securities of such series to recognize income, gain or loss for United States Federal income tax purposes and such Holders and beneficial owners will be subject to United States Federal income tax on the same amounts, in the same manner, and at the same times as would have been the case if such deposit and defeasance had not occurred (and if the Company elects legal defeasance, such Opinion of Counsel shall be based upon a ruling from the Internal Revenue Service or a change in law to that effect) and (ii) an Opinion of Irish Counsel that the deposit and related defeasance will not cause payments on the Securities of such series to be subject to Irish withholding tax in a manner different than would have been the case if such deposit and defeasance had not occurred;
(v) such covenant defeasance shall not (i) cause the Trustee to have a conflicting interest for purposes of the Trust Indenture Act with respect to any Securities or (ii) result in the trust arising from such deposit to constitute, unless it is qualified, a regulated investment company under the Investment Company Act of 1940; and
(vi) notwithstanding any other provisions of this Section 11.03, such covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantors pursuant to Section 2.01.
After such irrevocable deposit made pursuant to this Section 11.03 and satisfaction of the other conditions set forth herein, the Trustee upon request shall acknowledge in writing the discharge of the Company’s and the Guarantors’ obligations pursuant to this Section 11.03.
Section 11.04. Deposited Funds to be Held in Trust.
All funds or Governmental Obligations deposited with the Trustee pursuant to Sections 11.02 or 11.03 shall be held in trust and shall be available for payment as due, either directly or through any paying agent (including the Company or any Guarantor acting as its own paying agent), to the Holders of the particular series of Securities for the payment or redemption of which such funds or Governmental Obligations have been deposited with the Trustee.
Section 11.05. Payment of Funds Held by Paying Agents.
In connection with the provisions of Section 11.02 or 11.03, all funds or Governmental Obligations then held by any paying agent under the provisions of this Indenture shall, upon demand of the Company or any Guarantor, be paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such funds or Governmental Obligations.
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Section 11.06. Repayment to the Guarantors or the Company.
Any funds or Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Company or any Guarantor, in trust for payment of principal of, premium, if any, or interest on the Securities of a particular series that are not applied but remain unclaimed by the Holders of such Securities for at least two years after the date upon which the principal of, premium, if any, or interest on such Securities shall have respectively become due and payable, shall be repaid to the Company or such Guarantor, as applicable, or if then held by the Company or any Guarantor shall be discharged from such trust; and thereafter, the paying agent and the Trustee shall be released from all further liability with respect to such funds or Governmental Obligations, and the Holder of any of the Securities entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to the Company or the Guarantors, as applicable, for the payment thereof. Anything in this Article XI to the contrary notwithstanding, subject to Section 7.06, the Trustee shall deliver or pay to the Company or the Guarantors, as applicable, from time to time upon request by the Company or the Guarantors any funds or Governmental Obligations (or other property and any proceeds therefrom) held by it as provided in Sections 11.02 or 11.03 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect a defeasance or covenant defeasance, as the case may be, in accordance with this Article XI.
Section 11.07. Reinstatement.
If the Trustee or paying agent is unable to apply any funds or Governmental Obligations in accordance with Section 11.02 or 11.03 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and each Guarantor’s obligations under this Indenture, any indentures supplemental to this Indenture with respect to the applicable series of Securities and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.02 or 11.03, as the case may be, until such time as the Trustee or paying agent is permitted to apply all such funds or Governmental Obligations in accordance with Section 11.02 or 11.03, as the case may be; provided, however, that if the Company or any Guarantor has made any payment of principal, premium, if any, or interest on any Securities of such series following the reinstatement of its obligations as aforesaid, the Company or such Guarantor, as applicable, shall be subrogated to the rights of the Holders of such Securities of such series to receive such payment from the funds or Governmental Obligations held by the Trustee or paying agent.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01. No Recourse.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer, director or employee, past, present or future as such, of the Company or any Guarantor or of any predecessor or successor corporation, either directly or through the Company or the Guarantors or any such predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the Obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers, directors or employees as such, of the Company or any Guarantor or of any predecessor or successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer, director or employee as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Effect on Successors and Assigns.
All the agreements of the Company and each Guarantor in this Indenture or the Securities shall bind its respective successor whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successor whether so expressed or not.
Section 13.02. Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company or any Guarantor shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company or such Guarantor, as applicable.
Section 13.03. Notices.
Any notice or communication by the Company, the Guarantors or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the other’s address:
| If to the Company or any Guarantor: | STERIS Corporation. 5960 Heisley Rd. Mentor, Ohio 44060 Attention of Phone: Facsimile: | |
| If to the Trustee: | U.S. Bank Global Corporate Trust Cleveland, Ohio 44115 | CN-OH-RN11
Attention Global Corporate Trust | |
| With a copy to: |
Attn: Facsimile No.: | |
The Company, the Guarantors or the Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices, approvals, consents, requests, and any communications hereunder must be in writing; provided that any communication to the Trustee hereunder must be sent to a Responsible Officer of the Trustee at the Corporate Trust Office, and must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the authorized representative), in English (“Executed Documentation”)). Any Executed Documentation will be binding on all parties hereto to the same extent as if it were physically executed. When the Trustee acts on any
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Executed Documentation sent by electronic transmission, the Trustee will not be responsible or liable for any losses, costs or expenses arising directly or indirectly from its reliance upon and compliance with such Executed Documentation, notwithstanding that such Executed Documentation (a) may not be an authorized or authentic communication of the party involved or in the form such party sent or intended to send (whether due to fraud, distortion or otherwise) or (b) may conflict with, or be inconsistent with, a subsequent written instruction or communication; it being understood and agreed that the Trustee shall conclusively presume that Executed Documentation that purports to have been sent by an authorized officer of a Person has been sent by an authorized officer of such Person. The party providing Executed Documentation through electronic transmission or otherwise with electronic signatures agrees to assume all risks arising out of such electronic methods, including, without limitation, the risk of the Trustee acting on unauthorized instructions and the risk of interception and misuse by third parties.
All notices, approvals, consents, requests and any communications hereunder (other than those sent to Securityholders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery; and when receipt acknowledged, if sent to the Trustee in accordance with the paragraph above.
Any notice or communication to a Securityholder shall be mailed by first-class mail, certified or registered, return receipt requested, to his address shown on the Security Register. Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders.
In the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is conclusively presumed duly given, whether or not the addressee receives it.
Section 13.04. Governing Law.
This Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
Section 13.05. Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not as equity for United States Federal income tax purposes. The provisions of this Indenture shall be interpreted to further this intention.
Section 13.06. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company or any Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Company or such Guarantor shall deliver to the Trustee an Officer’s Certificate stating that, in the opinion of the signer, all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically dealt with by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished.
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(b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant in this Indenture shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.07. Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth in an Officer’s Certificate, or established in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business Day, then payment of principal, premium, if any, or interest or principal and premium, if any, may be made on the next succeeding Business Day with the same force and effect as if made on the date that payment was due, and no interest shall accrue on that payment for the period from and after that interest or other payment date, as the case may be, to the date of that payment on the next succeeding Business Day.
Section 13.08. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 13.09. Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes.
Section 13.10. Separability.
In case any one or more of the provisions contained in this Indenture or in the Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 13.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company, any Guarantor or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this 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.
Section 13.13. Consent to Jurisdiction and Service of Process.
The Company and each of the Guarantors agrees that any legal suit, action or proceeding brought by any party to enforce any rights under or with respect to this Indenture, any Security and any Guarantee or any other document or the transactions contemplated hereby or thereby may be instituted in any state or Federal court in The City of New York, State of New York, United States of America, irrevocably waives to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any such suit, action or
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proceeding, irrevocably waives to the fullest extent permitted by law any claim that and agrees not to claim or plead in any court that any such action, suit or proceeding brought in such court has been brought in an inconvenient forum and irrevocably submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding or for recognition and enforcement of any judgment in respect thereof. The Company and the Guarantors agree that a final non-appealable judgment in any such suit, action or proceedings shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
The Company and each of the Guarantors hereby irrevocably and unconditionally designates and appoints as its authorized agent to receive and forward on its behalf service of any and all process which may be served in any such suit, action or proceeding in any such court and agrees that service of process upon shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding and shall be taken and held to be valid personal service upon the Company or any Guarantor, as the case may be. Nothing in this Section 13.13 shall affect the right of the Holders to serve process in any manner permitted by law or limit the right of the Holders to bring proceedings against the Company or the Guarantors in the courts of any jurisdiction or jurisdictions. The Company and each Guarantor further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of in full force and effect so long as the Securities are outstanding. If for any reason ceases to be available to act as such, the Company and each Guarantor agrees to designate a new agent in the United States.
To the extent that the Company or the Guarantors has or hereafter may acquire any immunity from jurisdiction of any court (including any court in the United States, the State of New York, Ireland, England, Wales or other jurisdiction in which the Company or the Guarantors, or any successor thereof, may be organized or any political subdivisions thereof) or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property or assets, this Indenture, the Securities, the Guarantees or any other documents or actions to enforce judgments in respect of any thereof, then each of Company and each of the Guarantors hereby irrevocably waives such immunity, and any defense based on such immunity, in respect of its obligations under the above-referenced documents and the transactions contemplated thereby, to the extent permitted by law.
Section 13.14. Waiver of Jury Trial.
EACH OF THE COMPANY, EACH GUARANTOR, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.15. USA Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with U.S. Bank National Association. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
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ARTICLE XIV
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
Section 14.01. Tax Redemption.
The Company may redeem the Securities of a particular series, in whole but not in part, at its discretion at any time upon giving not less than 10 nor more than 60 days’ prior notice to the Holders of such Securities (which notice will be irrevocable and given in accordance with the procedures described in Section 3.02), at a redemption price equal to 100% of the aggregate principal amount thereof, together with accrued and unpaid interest, if any, to but not including the redemption date, and all Additional Amounts (if any) then due and which will become due on the redemption date as a result of the redemption or otherwise, if on the next date on which any amount would be payable in respect of such Securities, the Company (or any Guarantor with respect to any Guarantee) is or would be required to pay Additional Amounts, and the Company (or any Guarantor with respect to any Guarantee) cannot avoid any such payment obligation by taking reasonable measures available to it (including, without limitation, making payment through a paying agent located in another jurisdiction or, in the case of a payment by any Guarantor, by having such payment be made by the Company or another Guarantor that can make such payment without the obligation to pay Additional Amounts), and the requirement arises as a result of:
(a) any amendment to, or change in, the laws or any regulations or rulings promulgated thereunder of a relevant Taxing Jurisdiction which change or amendment is announced and becomes effective on or after the Issue Date of such Securities (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date of such Securities, such later date); or
(b) any amendment to, or change in, an official written interpretation or application of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice) which amendment or change is announced and becomes effective on or after the Issue Date of such Securities (or, if the applicable Taxing Jurisdiction became a Taxing Jurisdiction on a date after the Issue Date of such Securities, such later date) (each of the foregoing clauses (a) and (b), a “Change in Tax Law”).
The Company will not give any such notice of redemption earlier than 60 days prior to the earliest date on which the Company (or any Guarantor with respect to any Guarantee) would be obligated to make such of Additional Amounts if a payment in respect of the Securities of such series were then due, and the obligation to pay Additional Amounts must be in effect at the time such notice is given. Prior to the delivery of any notice of redemption of the Securities of any series pursuant to the foregoing, the Company will deliver to the Trustee (a) an Officer’s Certificate stating that the obligation to pay such Additional Amounts cannot be avoided by the Company (or any Guarantor with respect to any Guarantee) taking reasonable measures available to it; and (b) an Opinion of Counsel from independent tax counsel qualified under the laws of the relevant Taxing Jurisdiction to the effect that the Company (or any Guarantor with respect to any Guarantee) has or will become obligated to pay such Additional Amounts as a result of a Change in Tax Law.
The Trustee will accept and shall be entitled to rely on such Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders.
Section 14.02. Payment of Additional Amounts.
All payments made by or on behalf of the Company under or with respect to any Securities of any series (or by any Guarantor with respect to any Guarantee) will be made free and clear of and without withholding or deduction for or on account of any present or future Taxes, unless the Company (or such Guarantor) is required to withhold or deduct such Taxes by law. If the Company (or any Guarantor) is so required to withhold or deduct from any payment made under or with respect to the Securities of any series any amount for or on account of any Taxes imposed under (1) any jurisdiction in which the Company (or any Guarantor) is then incorporated, organized, engaged in business or resident for tax purposes or any political subdivision or taxing authority or agency thereof or therein or (2) any jurisdiction from or through which payment is made by or on behalf of the Company (or any
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Guarantor) (including the jurisdiction of any paying agent for the Securities of such series) or any political subdivision or taxing authority or agency thereof or therein (each of (1) and (2), a “Taxing Jurisdiction”), the Company (or such Guarantor) will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder and beneficial owner of the Securities of such series (including Additional Amounts) after such withholding or deduction will not be less than the amount such Holder or beneficial owner would have received if such Taxes had not been withheld or deducted; provided, however, no Additional Amounts will be payable to a Holder with respect to:
(a) any Taxes that would not have been imposed but for the existence of any actual or deemed present or former connection between the Holder or the beneficial owner of the Securities of such series (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, the relevant Holder or beneficial owner, if the Holder or beneficial owner is an estate, a nominee, trust, partnership or corporation) and the relevant Taxing Jurisdiction (including being a resident of such jurisdiction for Tax purposes), other than the holding of such Security, the enforcement of rights under such Security or under a Guarantee or the receipt of any payments in respect of such Security or Guarantee;
(b) any Taxes imposed as a result of the presentation of a Security of such series for payment (in cases in which presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional Amounts had such Security been presented on the last day of such 30-day period);
(c) any estate, inheritance, gift, sales, personal property, transfer or similar Taxes;
(d) any Taxes payable other than by deduction or withholding from payments under, or with respect to, Securities of such series or any Guarantee;
(e) any Taxes imposed or withheld by reason of the failure of the Holder or beneficial owner of Securities of such series to comply with any reasonable written request of the Company or the relevant Guarantor, addressed to the Holder and made at least 60 days before any such withholding or deduction would be made, to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of a Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Taxing Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Taxing Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is not prohibited from complying with such request;
(f) any Tax imposed on or with respect to any payment by the Company or the relevant Guarantor to the Holder if such Holder is a fiduciary or partnership or Person other than the sole beneficial owner of such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of Securities of such series;
(g) any Taxes imposed pursuant to Sections 1471-1474 of the United States Internal Revenue Code of 1986, as amended, and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing, or relating to, FATCA or any law, regulation or official guidance enacted or issued in any jurisdiction with respect thereto; or
(h) any combination of the above items.
In addition to the foregoing, the Company and the Guarantors will also pay and indemnify the Holders for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Taxing Jurisdiction on the execution, delivery, issuance, registration or enforcement of, or the receipt of payments with respect to, any of the Securities, this Indenture, any Guarantee or any other document or instrument referred to therein (other than on or in connection with a transfer of any Securities other than the initial resale of such Securities).
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If the Company or any Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to any Securities or any Guarantee, each of the Company or the relevant Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises less than 30 days prior to that payment date, in which case the Company or the relevant Guarantor shall notify the Trustee, in writing, promptly thereafter) an Officer’s Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officer’s Certificate(s) must also set forth any other information necessary to enable the paying agent to pay such Additional Amounts to Holders on the relevant payment date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary. The Company or the relevant Guarantor will also provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
The Company or the relevant Guarantor will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company or the relevant Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Company or the relevant Guarantor will furnish to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or a Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (satisfactory to the Trustee) by such entity. Upon reasonable request, copies of Tax receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Securities.
Wherever in this Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest, if any, or any other amount payable under or with respect to any Security or any Guarantee, such mention will be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The above obligations will survive any termination, defeasance or discharge of this Indenture, any transfer by a Holder or beneficial owner of its Securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor Person to the Company or any Guarantor is incorporated, engaged in business or otherwise resident for tax purposes or any jurisdiction from or through which such Person makes any payment on any Securities (or any Guarantee) and, in each case, any political subdivision or taxing authority thereof or therein.
ARTICLE XV
GUARANTEES
Section 15.01. Guarantees.
Each Guarantor hereby fully and unconditionally, and jointly and severally with each other Guarantor, guarantees (i) to each Holder of each Security that is authenticated and delivered by the Trustee, and (ii) to the Trustee on behalf of such Holder, the due and punctual payment of the principal of, premium, if any, and interest on such Security when and as the same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption or otherwise, in accordance with the terms of such Security and of this Indenture and such other Obligations under such Security and this Indenture. In case of the failure of the Company punctually to make any such payment, each Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at the stated maturity or by acceleration, call for redemption or otherwise, and as if such payment were made by the Company. The Guarantors, jointly and severally, agree to pay, in addition to the amount stated above, any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under the Guarantees.
Each Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, the validity, regularity or enforceability of such Security or this Indenture, the absence of any action to enforce the same or any release, amendment, waiver or indulgence granted to the Company or such Guarantor or any consent to departure from any requirement of any other guarantee of all or
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any of the Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of the Holders protect, secure, perfect or insure any security interest in or other lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Guarantee. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders of the applicable series of Securities are prevented by applicable law from exercising their respective rights to accelerate the maturity of such Securities, to collect interest on such Securities, or to enforce or exercise any other right or remedy with respect to such Securities, each Guarantor agrees to pay to the Trustee for the account of such Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of such Holders.
The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any part of the Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of such Securities, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any Holder of such Securities, whether as a “voidable preference,” “fraudulent transfer,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, such Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
Any term or provision of the Guarantee to the contrary notwithstanding, the aggregate amount of the Obligations guaranteed hereunder shall be reduced to the extent necessary to prevent such Guarantee from violating or becoming voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
In case any provision of any Guarantee 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. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
Section 15.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of a Security, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal or state or the U.K. Insolvency Act of 1986 or any similar United Kingdom, England and Wales law or The Companies Act of 1981 (as amended), the Conveyancing Act 1983 (as amended) or such other similar Bermuda law or such other foreign law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the Obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under this Article XV, result in the Obligations of such Guarantor under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
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Section 15.03. Execution and Delivery.
To evidence its Guarantee set forth in Section 15.01 hereof, each Guarantor hereby agrees that this Indenture (or an indenture supplemental hereto) shall be executed on behalf of such Guarantor by any member of its Board of Directors, its chief executive officer, the president, the chief financial officer or any vice president.
Each Guarantor hereby agrees that its Guarantee set forth in Section 15.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on any Security.
If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Security, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by this Indenture or in accordance with Section 2.01 pursuant to a Board Resolution, and as set forth in an Officer’s Certificate, or established in one or more indentures supplemental to this Indenture, Parent shall cause any Subsidiary required to become a Guarantor hereunder to comply with the provisions of this Article XV, to the extent applicable.
Section 15.04. Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of the Securities against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 15.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture or such series of Securities shall have been paid in full.
Section 15.05. Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 15.06. Releases of Guarantees.
A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee is required for the release of such Guarantor’s Guarantee, upon any of the following events, except with respect to any series of Securities for which the supplemental indenture or Board Resolution under which such series of Securities is issued or in the form of Security for such series expressly provides that any such event shall not apply or any other event shall apply:
(a) in the case of a Subsidiary Guarantor, any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, consolidation or otherwise) of capital stock or other interests of such Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Subsidiary of Parent, which sale, assignment, transfer, conveyance, exchange or other disposition is made in compliance with the provisions of this Indenture (including Section 10.02); provided that all guarantees and other obligations of such Subsidiary Guarantor in respect of all other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities shall terminate upon consummation of such transaction;
(b) upon the sale or disposition of all or substantially all of the assets of a Subsidiary Guarantor, which sale or disposition is made in compliance with the provisions of this Indenture (including Section 10.02); provided that all guarantees and other Obligations of such Subsidiary Guarantor in respect of all other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities shall terminate upon consummation of such transaction;
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(c) the release or discharge of such Subsidiary Guarantor from its guarantee of Indebtedness or its Obligations under any other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities (including, by reason of the termination of such Indebtedness), except a release or discharge by or as a result of payment under such guarantee;
(d) the Company’s exercise of its legal defeasance option or covenant defeasance option as described under Section 11.03 or the discharge of the Company’s Obligations under this Indenture in accordance with the terms hereof, including Section 11.02; or
(e) in the case of Parent, the Company ceases for any reason to be a Subsidiary of Parent; provided that all guarantees and other Obligations of Parent in respect of all other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities shall terminate upon the Company ceasing to be a Subsidiary.
In addition, at the Company’s option, and not automatically, Parent shall be released under its Guarantee if it is released from its Guarantee of other Indebtedness of the Company or any Guarantor that required such Guarantee of the Securities in the same manner as specified in clause (c) above.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| STERIS IRISH FINCO UNLIMITED COMPANY, as Issuer | ||
| By: |
| |
| Name: | ||
| Title: | ||
| STERIS PLC, as a Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| STERIS CORPORATION, as a Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| STERIS LIMITED, as a Guarantor | ||
| By: |
| |
| Name: | ||
| Title: | ||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
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EXHIBIT A
FORM OF CERTIFICATE OF TRANSFER
STERIS Irish FinCo Unlimited Company
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
Attention: [ ]
[Trustee]
[Address]
Re: [insert description of Securities]
Ladies and Gentlemen,
Reference is hereby made to the Indenture, dated as of , , among STERIS Irish FinCo Unlimited Company (the “Company”), each of the guarantors party thereto (the “Guarantors”) and , a , as trustee (the “Trustee”), [as supplemented by that certain supplemental indenture dated as of ] [and the Board Resolution adopted ] (together, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. (the “Transferor”) owns and proposes to transfer the Security or Securities or interest[s] in such Security or Securities specified in Annex A hereto, in the principal amount of $ in such Security or Securities or interest[s] (the “Transfer”), to (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Security or a Definitive Security Pursuant to Rule 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Security is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Security for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A (a “QIB”) in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any State of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Security and/or the Definitive Security and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Security or a Definitive Security pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (y) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (z) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904 (b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed Transfer is being made prior to the expiration of the Distribution Compliance Period, the Transfer is not being made to a U.S. person (as such is defined in Regulation S) or for the account or benefit of a U.S. person (other than an initial purchaser of the Securities) and the interest transferred will be held immediately thereafter through Euroclear or Clearstream. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Regulation S Global Security and/or the Definitive Security and in the Indenture and the Securities Act.
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3. Check and complete if Transferee will take delivery of a beneficial interest in a Definitive Security pursuant to any provision of the Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Securities and Restricted Definitive Securities and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any State of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) Such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or
(b) Such Transfer is being effected to the Company or a subsidiary thereof; or
(c) Such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act; or
(d) Such Transfer is being effected to an Institutional Accredited Investor and pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Security or Restricted Definitive Security and the requirements of the exemption claimed, which certification is supported by a certificate executed by the Transferee in the form attached as Exhibit C to the Indenture. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the Definitive Security will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Definitive Security and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Security or of an Unrestricted Definitive Security.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities, on Restricted Definitive Securities and in the Indenture and the Securities Act.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities, on Restricted Definitive Securities and in the Indenture and the Securities Act.
A-2
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Security will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Securities or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
Dated:
|
[Insert Name of Transferor] | ||
| By: |
| |
| Name | ||
| Title | ||
A-3
ANNEX A TO CERTIFICATE OF TRANSFER
| 1. | The Transferor owns and proposed to transfer the following: |
[CHECK ONE OF (a) OR (b)]
| (a) | a beneficial interest in the: |
| (i) | 144A Global Security (CUSIP ), or |
| (ii) | Regulation S Global Security (CUSIP ), or |
| (b) | a Restricted Definitive Security. |
| 2. | After the transfer the Transferee will hold: |
| (a) | a beneficial interest in the: |
| (i) | 144A Global Security (CUSIP ), or |
| (ii) | Regulation S Global Security (CUSIP ), or |
| (iii) | Unrestricted Global Security (CUSIP ); or |
| (b) | a Restricted Definitive Security; or |
| (c) | an Unrestricted Definitive Security, in accordance with the terms of the Indenture. |
A-4
EXHIBIT B
FORM OF CERTIFICATE OF EXCHANGE
STERIS Irish FinCo Unlimited Company
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
Attention: [ ]
[Trustee]
[Address]
Re: [insert description of Securities]
Ladies and Gentlemen,
Reference is hereby made to the Indenture, dated as of , , among STERIS Irish FinCo Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “Company”), the guarantors party thereto (the “Guarantors”) and , a , as trustee (the “Trustee”) [as supplemented by that certain supplemental indenture dated as of ] [and the Board Resolution adopted ] (together, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
, (the “Owner”) owns and proposes to transfer the Security or Securities or interest[s] in such Security or Securities specified herein, in the principal amount of $ in such Security or Securities or interest[s] (the “Exchange”). In connection with the Transfer, the Transferor hereby certifies that:
1. Exchange of Restricted Definitive Securities or Beneficial Interests in a Restricted Global Security for Unrestricted Definitive Securities or Beneficial Interests in an Unrestricted Global Security.
(a) Check if Exchange is from beneficial interest in a Restricted Global Security to beneficial interest in an Unrestricted Global Security. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Security for a beneficial interest in an Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Securities and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global Security to Unrestricted Definitive Security. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Security for an Unrestricted Definitive Security in an equal principal amount, the Owner hereby certifies (i) the Definitive Security is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(c) Check if Exchange is from Restricted Definitive Security to beneficial interest in an Unrestricted Global Security. In connection with the Owner’s Exchange of a Restricted Definitive Security for a beneficial interest in an Unrestricted Global Security, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Securities and
B-1
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(d) Check if Exchange is from Restricted Definitive Security to Unrestricted Definitive Security. In connection with the Owner’s Exchange of a Restricted Definitive Security for an Unrestricted Definitive Security, the Owner hereby certifies (i) the Unrestricted Definitive Security is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Securities and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
2. Exchange of Restricted Definitive Securities or Beneficial Interests in Restricted Global Securities for Restricted Definitive Securities or Beneficial Interests in Restricted Global Securities.
(a) Check if Exchange is from beneficial interest in a Restricted Global Security to Restricted Definitive Security. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Security for a Restricted Definitive Security with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Security is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Security issued will continue to be subject to the restrictions on transfer enumerated in the B-2 Private Placement Legend printed on the Restricted Definitive Security and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Security to beneficial interest in a Restricted Global Security. In connection with the Exchange of the Owner’s Restricted Definitive Security for a beneficial interest in the: [CHECK ONE] 144A Global Security or. Regulation S Global Security with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Global Securities and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any State of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Security and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
|
[Insert Name of Owner] | ||||
| By: |
| |||
| Name | ||||
| Title | ||||
| Dated: |
| |||
B-2
EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
STERIS Irish FinCo Unlimited Company
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
[Trustee]
[Address]
Re: [insert description of Securities]
Ladies and Gentlemen,
Reference is hereby made to the Indenture, dated as of , among STERIS Irish FinCo Unlimited Company, an Irish public unlimited company (the “Company”), the guarantors party thereto (the “Guarantors”), and , a, as trustee (the “Trustee”) [as supplemented by that certain supplemental indenture dated as of ] [and the Board Resolution adopted ] (together, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $ aggregate principal amount of: (a) a beneficial interest in a Global Security, or (b) a Definitive Security, we confirm that:
1. We understand that any subsequent transfer of the Securities or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Securities or any interest therein except in compliance with, such restrictions and conditions and the United States Securities Act of 1933, as amended (the “Securities Act”).
2. We understand that the offer and sale of the Securities have not been registered under the Securities Act, and that the Securities and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Securities or any interest therein, we will do so only (1) in the United States to a person whom the seller reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements of Rule 144A, (2) outside the United States in an offshore transaction in accordance with Rule 904 under the Securities Act, (3) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available) or (4) pursuant to an effective registration statement under the Securities Act, in each of cases (1) through (4) in accordance with any applicable securities laws of any state of the United States, and we further agree to notify any purchaser of the Securities from us of the resale restrictions referred to above.
3. We understand that, on any proposed resale of the Securities or beneficial interest therein, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that any subsequent transfer by us of the Securities or beneficial interest therein acquired by us must be effected through one of the initial purchasers of the Securities.
4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Securities, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
C-1
5. We are acquiring the Securities or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an institutional “accredited investor”) as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
| Dated: |
| |||
|
[Insert Name of Accredited Investor] | ||||
| By: |
| |||
| Name | ||||
| Title | ||||
C-2
SCHEDULE 1
LIST OF GUARANTORS
STERIS plc
STERIS Corporation
STERIS Limited
Schedule 1-1
Exhibit 5.1
STERIS plc
STERIS Irish FinCo Unlimited Company
70 Sir John Rogerson’s Quay
Dublin 2
Ireland
Private and Confidential
| Our ref | 23 March 2021 | |
| FBO 669595-11 |
Dear Sirs
Registration Statement on Form S-3
STERIS plc
STERIS Irish FinCo Unlimited Company
We have acted as Irish counsel to STERIS plc, a public limited company incorporated under the laws of Ireland (company number 595593) (“STERIS plc”) and STERIS Irish FinCo Unlimited Company, a public unlimited company incorporated under the laws of Ireland (company number 570385) (“STERIS Irish FinCo”, and together with STERIS plc, the “Irish Registrants”) in connection with the filing by the Irish Registrants (together with STERIS Corporation, an Ohio corporation and STERIS Limited, a private company incorporated under the laws of England and Wales) on the date hereof of a registration statement on Form S-3 (the “Registration Statement”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”) with the U.S. Securities Exchange Commission (the “Commission”), pursuant to which the Irish Registrants will register, under the Securities Act, an indeterminate number of: (i) debt securities of STERIS plc (“STERIS plc Debt Securities”), (ii) ordinary shares of $0.001 each (nominal value) in the capital of STERIS plc (“Ordinary Shares”), (iii) preferred shares of $0.001 each (nominal value) in the capital of STERIS plc (“Preferred Shares”, and together with the Ordinary Shares, “Shares”), (iv) warrants to purchase Shares or STERIS plc Debt Securities (“Warrants”), (v) units compromising two or more of the foregoing securities as well as FinCo Debt Securities (as defined below) (“Units”), (vi) debt securities of STERIS Irish FinCo (“FinCo Debt Securities”, and together with STERIS plc Debt Securities, “Debt Securities”) and (vii) the related guarantees by STERIS plc and STERIS Irish FinCo of Debt Securities (“Guarantees” and together with Debt Securities, Shares, Warrants and Units, “Securities”), in order to facilitate future offerings of Securities.
STERIS plc Debt Securities will be issued under a form of indenture filed with the Commission as an exhibit to the Registration Statement, which is to be entered into among STERIS plc, as issuer, the applicable guarantors, if any, and U.S. Bank National Association (the “Trustee”), as trustee (the “STERIS plc Indenture”), as supplemented, from time to time, by one or more duly authorised and executed supplemental indentures.
FinCo Debt Securities will be issued under a form of indenture filed with the Commission as an exhibit to the Registration Statement, which is to be entered into among STERIS Irish FinCo, as issuer, the applicable guarantors, if any, and the Trustee, as trustee (the “FinCo Indenture”, and together with the STERIS plc Debenture, the “Indentures”), as supplemented, from time to time, by one or more duly authorised and executed supplemental indentures.
In connection with this Opinion, we have reviewed the corporate resolutions, records and other documents and searches listed in Schedule 1 to this Opinion (the “Documents”).
Based on the foregoing, and subject to the assumptions, qualification and limitations set out in Schedule 2, Schedule 3 and elsewhere in this Opinion, we are of the opinion that:
| 1 | STERIS plc is a public limited company, duly incorporated and validly existing under the laws of Ireland; |
| 2 | STERIS Irish FinCo is a public unlimited company, duly incorporated and validly existing under the laws of Ireland; |
| 3 | Shares (including any Shares issued pursuant to Warrants or Units), when issued in accordance with all necessary corporate action of STERIS plc (including a valid resolution of the board of directors of STERIS plc or a duly appointed committee thereof) and the provisions of STERIS plc’s constitution and any applicable prospectus or prospectus supplement, and subject to receipt by STERIS plc of the full consideration payable therefor, will be validly issued, fully-paid and non-assessable (“non-assessable” is a phrase which has no defined meaning under Irish law, but, for the purposes of this Opinion, shall mean that the registered holders of shares are not subject to calls for additional payments on such shares); |
| 4 | STERIS plc has the requisite power and authority under its constitution to enter into the STERIS plc Indenture and to perform its obligations thereunder and, if duly authorised by a valid resolution of the board of directors of STERIS plc or a duly appointed committee thereof (and provided they are issued in accordance with the terms of the STERIS plc Indenture, as supplemented by any duly authorised and executed supplemental indenture), to issue STERIS plc Debt Securities; |
| 5 | STERIS plc has the requisite power and authority under its constitution, if duly authorised by a valid resolution of the board of directors of STERIS plc or a duly appointed committee thereof , to issue Warrants and Units, provided that any Debt Securities issued pursuant to Warrants or Units are issued in accordance with the terms of the applicable Indenture, as supplemented by any duly authorised and executed supplemental indenture; |
| 6 | STERIS plc has the requisite power and authority under its constitution to enter into the FinCo Indenture and to perform its obligations thereunder and, if duly authorised by a valid resolution of the board of directors of STERIS plc or a duly appointed committee thereof (and provided they are issued in accordance with the terms of the FinCo Indenture, as supplemented by any duly authorised and executed supplemental indenture), to issue Guarantees of FinCo Debt Securities; |
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| 7 | STERIS Irish FinCo has the requisite power and authority under its constitution to enter into the FinCo Indenture and to perform its obligations thereunder and, if duly authorised by a valid resolution of the board of directors of STERIS Irish FinCo (and provided they are issued in accordance with the terms of the FinCo Indenture, as supplemented by any duly authorised and executed supplemental indenture), to issue FinCo Debt Securities; and |
| 8 | STERIS Irish FinCo has the requisite power and authority under its constitution to enter into the STERIS plc Indenture and to perform its obligations thereunder and, if duly authorised by a valid resolution of the board of directors of STERIS Irish FinCo or a duly appointed committee thereof (and provided they are issued in accordance with the terms of the STERIS plc Indenture, as supplemented by any duly authorised and executed supplemental indenture), to issue Guarantees of STERIS plc Debt Securities. |
This Opinion is based upon, and limited to, the laws of Ireland in effect on the date hereof and is based on legislation published and cases fully reported before that date and our knowledge of the facts relevant to the opinions contained herein. We have assumed, without enquiry, that there is nothing in the laws of any jurisdiction other than Ireland which would, or might, affect our opinions as stated herein. We have made no investigations of, and we express no opinion on, the laws of any jurisdiction other than Ireland, or the effect thereof. This Opinion is expressed as of the date hereof and we assume no obligation to update this Opinion.
This Opinion is furnished to you and the persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act strictly for use in connection with the Registration Statement and may not be relied upon by any other person without our prior written consent. This Opinion is confined strictly to the matters expressly stated herein and is not to be read as extending, by implication or otherwise, to any other matter.
We hereby consent to the filing of this Opinion as Exhibit 5.1 to the Registration Statement and to the reference to Matheson under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement. In giving such consent, we do not admit that we are included in the category of persons whose consent is required under section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.
This Opinion and the opinions given in it are governed by, and shall be construed in accordance with, the laws of Ireland.
Yours faithfully
/s/ Matheson
MATHESON
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Schedule 1
The Documents
| 1. | Copies of the certificate of incorporation, certificate of incorporation on change of name and certificate of incorporation on re-registration as a public limited company of STERIS plc, dated 22 December 2016, 25 October 2018 and 11 February 2019, respectively. |
| 2. | Copy certificate of incorporation of STERIS Irish FinCo and certificate of incorporation on re-registration as a public unlimited company, dated 21 October 2015 and 18 March 2021, respectively. |
| 3. | Copy constitution of STERIS plc, adopted on 27 March 2019 and amended on 3 May 2019. |
| 4. | Copy constitution of STERIS Irish FinCo, adopted with effect from its re-registration as a public unlimited company on 18 March 2021. |
| 5. | Copy resolutions of the board of directors of STERIS plc passed on 12 January 2021. |
| 6. | Copy resolutions of the board of directors of STERIS Irish FinCo passed on 15 March 2021. |
| 7. | The Registration Statement, including the prospectus contained therein. |
| 8. | The form of STERIS plc Indenture to be filed with the Commission as an exhibit to the Registration Statement. |
| 9. | The form of FinCo Indenture to be filed with the Commission as an exhibit to the Registration Statement. |
| 10. | Searches carried out by independent law researchers on our behalf against STERIS plc and STERIS Irish FinCo on 19 March 2021 in (a) the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, (b) the Judgments’ Office of the Central Office of the High Court of Ireland and (c) the Companies Registration Office (the “Searches”). |
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Schedule 2
Assumptions
For the purposes of this Opinion, we have assumed:
| 1. | The truth and accuracy of the contents of the Documents as to factual matters, but have made no independent investigation regarding such factual matters. |
| 2. | All signatures, initials, seals and stamps contained in, or on, the Documents submitted to us are genuine. |
| 3. | All Documents submitted to us as originals are authentic and complete and all Documents submitted to us as copies (including without limitation any document submitted to us as a .pdf, or any other format, attachment to an email) are complete and conform to the originals of such Documents, and the originals of such Documents are authentic and complete. |
| 4. | The STERIS plc Indenture and the FinCo Indenture will be executed by all parties in the forms we have examined for the purposes of this Opinion. |
| 5. | The terms of any supplemental indenture to the STERIS plc Indenture or the FinCo Indenture will be duly authorised, executed and delivered by all parties thereto (including the Irish Registrants) and no such supplemental indenture will contain a term or other provision that would render either Indenture or the offer, sale, issuance, admission to trading and/or listing of Debt Securities (including Debt Securities the subject of Warrants or Units) thereunder unlawful under the constitutions of either Irish Registrant or the applicable laws of any jurisdiction, including Ireland. |
| 6. | Each party to the Documents (other than either of the Irish Registrants) has, and shall continue to have, the due and requisite capacity, power and authority to enter into, execute and perform its obligations under the Documents to which it is, or shall become, a party, and the Documents are, and will not become, subject to avoidance by any person under all applicable laws in any applicable jurisdictions (other than, in the case of the Irish Registrants, the laws of Ireland and the jurisdiction of Ireland). |
| 7. | All Documents dated on or prior to the date hereof and on which we have expressed reliance have not been revoked or amended and remain accurate. |
| 8. | The resolutions of the board of directors of the Irish Registrants on which we have expressed reliance have not been amended or rescinded and are in full force and effect. |
| 9. | Each Irish Registrant will derive a commercial benefit from entering into the Indentures, any supplemental indentures and any other document referred to in, or contemplated by, the Registration Statement (including the prospectus contained therein and any prospectus supplement) and issuing Securities thereunder commensurate with the obligations undertaken by it thereunder. |
| 10. | At the time of the allotment and issue of any Shares or Warrants in respect of Shares, STERIS plc will have a sufficient number of authorised but unissued Shares of the relevant class in its share capital (being at least equal to the number of Shares of the relevant class to be allotted and issued). |
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| 11. | At the time of the allotment and issue of any Shares (or the grant of any right to subscribe for, or convert any security into, Shares, including Warrants in respect of Shares (a “convertible right”)), to the extent required, (a) the directors of STERIS plc will, in accordance with section 1021 of the Companies Act 2014 of Ireland (the “Companies Act”), have been generally and unconditionally authorised by the shareholders of STERIS plc to allot a sufficient number of “relevant securities” (within the meaning of that section), being at least equal to the number of Shares the subject of such allotment and issuance or grant of a convertible right and (b) the directors of STERIS plc will, in accordance with section 1023 of the Companies Act, have been empowered by the shareholders of STERIS plc to allot and issue such Shares or to grant such convertible rights as if section 1022(1) did not apply to such allotment and issuance or grant. |
| 12. | Where treasury shares are being re-issued, the maximum and minimum prices of re-issue shall have been determined in advance at a general meeting of STERIS plc in accordance with the requirements of section 1078 of the Companies Act. |
| 13. | No Share will be allotted and issued for less than its nominal value, and no Share will be allotted and issued for consideration other than cash save in accordance with the provisions of sections 1027, 1028 and 1029 of the Companies Act. |
| 14. | No Share will be allotted and issued: (a) for consideration of an undertaking from any person that he, she or another will do work or perform services for STERIS plc or for any other person, (b) for consideration otherwise than in cash that includes an undertaking which is to be or may be performed more than five years after the date of allotment or (c) for other consideration which, from time to time, is not considered good or adequate consideration. |
| 15. | A Share shall be issued by the entry of the name of the registered holder thereof in the register of members of STERIS plc confirming that such Share has been issued fully paid-up. |
| 16. | No FinCo Debt Securities will be offered to the public, admitted to trading or listed other than as permitted by Section 68(2) (as amended by section 1248) and section 68(3) of the Companies Act. |
| 17. | Neither of the Irish Registrants shall, by virtue of or in connection with any Securities to be allotted and issued by it, give any financial assistance, as contemplated by sections 82 and 1043 of the Companies Act for the purpose of any acquisition of shares in the capital of either Irish Registrant or any company which, from time to time, is the holding company of either Irish Registrant, save as permitted by, or pursuant to an exemption to, the said sections 82 and 1043. |
| 18. | Each Irish Registrant together with any other entity whose obligations are guaranteed by it under the Indentures or any supplemental indentures together comprise a “group” for the purposes of section 243 of the Companies Act and any person that subsequently becomes an issuer or a guarantor under the Indentures or any supplemental indentures will also be a member of such group. |
| 19. | In approving the issue and sale of any Securities, there shall be no intent by the directors and / or any duly authorised officer of either Irish Registrant acting under delegated authority to give a creditor a preference which could be deemed to be an unfair preference in accordance with section 604 of the Companies Act. |
| 20. | The obligations expressed to be assumed by each party to the Indentures are legal, valid, binding and enforceable obligations under all applicable laws and in all applicable jurisdictions, other than, in the case of the Irish Registrants, the laws of Ireland and the jurisdiction of Ireland and any obligations expressed to be assumed by each party to any supplemental indentures will be legal, valid, binding and enforceable obligations under all applicable laws and in all applicable jurisdictions, including the laws of Ireland and the jurisdiction of Ireland. |
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| 21. | If any obligation of any of the parties under the Indentures or any supplemental indentures is to be performed in any jurisdiction other than Ireland, its performance will not be illegal or ineffective by virtue of the law of that jurisdiction and there are no provisions of the laws or public policy of any jurisdiction outside Ireland which would be contravened by the execution or performance of the Indentures or any supplemental indentures or which would render their performance ineffective by virtue of the laws of that jurisdiction. |
| 22. | The Indentures, any supplemental indentures and the transactions contemplated thereby and the payments to be made thereunder are not and will not be affected by any financial restrictions or sanctions arising from orders made by the Irish Minister for Finance under the Financial Transfers Act 1992 of Ireland and/or section 42 of the Criminal Justice (Terrorist Offences) Act 2005 of Ireland or the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 of Ireland. |
| 23. | All authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities, including Ireland, with respect to the agreements or arrangements referred to in the Registration Statement (including the prospectus contained therein and any prospectus supplement) or with respect to the issue, offer or sale of any Securities have been, or will be, obtained and are, or will be, in full force and effect, all Securities will conform with the descriptions contained in the Registration Statement (including the prospectus contained therein and any prospectus supplement) and, subject to such changes as may be required in order to comply with any requirement of Irish law, the selling restrictions contained in the Registration Statement (including the prospectus and any supplemental prospectus) have been and will, at all times, be observed and the Irish Registrants will otherwise comply with the terms of any other lawful agreements relating to the issue, sale and/or offer of any Securities |
| 24. | The creation, issuance, offering or sale, including the marketing, of any Securities will be made, effected and conducted in accordance with and will not otherwise violate any applicable laws and regulations of any jurisdiction, including Ireland, or supra-national authority, including, without limitation: (a) the securities laws and regulations of any jurisdiction or supra-national authority which impose any restrictions, or mandatory requirements, in relation to the offering or sale of Securities to the public in any jurisdiction, including the obligation to prepare a prospectus or registration document relating to any Securities and (b) any requirement or restriction imposed by any court, governmental body or supra-national authority having jurisdiction over the Irish Registrants or the members of their group. |
| 25. | That: (a) each Irish Registrant will be fully solvent at the time of and immediately following the issue of any Securities, (b) no resolution or petition for the appointment of a liquidator or examiner will be passed or presented prior to the issue of any Securities, (c) no receiver will have been appointed in relation to any of the assets or undertaking of either Irish Registrant prior to the issue of any Securities and (d) no composition in satisfaction of debts, scheme of arrangement, or compromise or arrangement with creditors or members (or any class of creditors or members) will be proposed, sanctioned or approved in relation to either Irish registrant prior to the issue of any Securities. |
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| 26. | The information disclosed by the Searches was accurate and complete as of the date the Searches were made and has not been altered, and the Searches did not fail to disclose any information which had been delivered for registration but which did not appear from the information available at the time the Searches were made or which ought to have been delivered for registration at that time but had not been so delivered. No additional matters would have been disclosed by searches being carried out since that time. |
| 27. | No proceedings have been or will be instituted or injunction granted against either Irish Registrant to restrain it from issuing any Securities and the issue of same would not be contrary to any state, government, court, state or quasi-governmental agency, licencing authority, local or municipal government body or regulatory authority’s order, direction, guideline, recommendation, decision, licence or requirement. |
| 28. | The absence of fraud and the presence of good faith on the part of all parties to the Indentures, any supplemental indentures and any other relevant documents and their respective officers, employees, agents and advisors. |
8
Schedule 3
Qualifications
The opinions in this Opinion are subject to the following qualifications:
| 1. | A search at the Companies Registration Office is not conclusively capable of revealing whether or not a winding up petition or a petition for the appointment of an examiner, receiver or liquidator has been presented or a resolution passed for the winding up of either Irish Registrant. A search on the Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland is not capable of revealing whether or not a receiver has been appointed to either Irish Registrant. |
| 2. | Whilst each of the making of a winding up order, the making of an order for the appointment of an examiner and the appointment of a receiver may be revealed by a search at the Companies Registration Office it may not be filed at the Companies Registration Office immediately and, therefore, our searches at the Companies Registration Office may not have revealed such matters. Similarly whilst a petition to wind up may be revealed by a search on Index of Petitions and Winding-up Notices maintained at the Central Office of the High Court of Ireland, the making of a winding up order may not be filed on the Index immediately and therefore our searches may not have revealed such matters. |
| 3. | The position reflected in the Searches may not be fully up to date (and this risk may be higher while emergency measures introduced by the Irish Government in light of the COVID-19 pandemic remain in place). |
| 4. | The expressions “validly” and “valid and binding” when used in this Opinion mean that the obligations expressed to be assumed are of a type which the courts of Ireland will treat as valid and binding. It does not mean that these obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular, enforcement of obligations may be: |
| (a) | limited by general principles of equity, in particular, equitable remedies (such as an order for specific performance or an injunction) which are discretionary and are not available where damages are considered to be an adequate remedy; |
| (b) | subject to any limitations arising from examinership, administration, bankruptcy, insolvency, moratoria, receivership, liquidation, reorganisation, court scheme of arrangement, arrangement and similar laws affecting the rights of creditors; |
| (c) | limited by the provisions of the law of Ireland applicable to contracts held to have been frustrated by events happening after their execution; |
| (d) | invalidated if and to the extent that performance or observance arising in a jurisdiction outside Ireland would be unlawful, unenforceable, or contrary to public policy or to the exchange control regulations under the law of such jurisdiction; |
| (e) | invalidated by reason of fraud; and |
| (f) | barred under the Statutes of Limitations of 1957 of Ireland (as amended from time to time) or may be or become subject to the defence of set-off or counterclaim. |
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| 5. | The Companies Act prohibits certain steps being taken except with the leave of the court against a company after the presentation of a petition for the appointment of an examiner. This prohibition continues if an examiner is appointed for so long as the examiner remains appointed (maximum period of one hundred days or such period as the court in question may determine). Prohibited steps include steps taken to enforce any security over the company’s property, the commencement or continuation of proceedings or execution or other legal process or the levying of distress against the company or its property and the appointment of a receiver. |
| 6. | Under the provisions of the Companies Act, an examiner can be appointed on a petition to the Circuit Court, if certain criteria are met. It is not possible for anyone other than a party to the relevant proceedings or the solicitors on record for such parties to inspect the Circuit Court files to ascertain whether a petition for the appointment of an examiner has been made in the Circuit Court, and we have made no searches or enquiries in this regard in respect of either Irish Registrant. |
| 7. | A contractual provision conferring or imposing a remedy or an obligation consequent upon default may not be enforceable if it were construed by an Irish court as being a penalty, particularly if it involved enforcing an additional pecuniary remedy (such as a default or overdue interest) referable to such default and which does not constitute a genuine and reasonable pre-estimate of the damage likely to be suffered as a result of the default in payment of the amount in question or the termination in question; further, recovery may be limited by laws requiring mitigation of loss suffered. |
| 8. | An Irish court may not give effect to an indemnity given by any party to the extent it is in respect of legal costs incurred by an unsuccessful litigator or to the extent that it is in respect of litigation costs which are not awarded by the court. |
| 9. | In the event of any proceedings being brought in an Irish court in respect of a monetary obligation expressed to be payable in a currency other than euro, an Irish court would have the power to give a judgment to pay a currency other than euro but may decline to do so in its discretion and an Irish court might not enforce the benefit of currency conversion or indemnity clauses and, with respect to a bankruptcy, liquidation, insolvency, reorganisation or similar proceeding, the law of Ireland may require that all claims or debts be converted into euro at an exchange rate determined by the court as at a date related thereto, such as the date of commencement of a winding up. |
| 10. | This Opinion does not deal with the tax treatment of the issuance and transfer of the Securities or any payments in respect of the Securities. |
| 11. | Where a party is vested with a discretion or may determine a matter in his or its opinion, the law of Ireland may require that such discretion is exercised reasonably or that such opinion is based upon reasonable grounds. |
| 12. | The courts of Ireland may interpret restrictively any provision purporting to allow the beneficiary of a guarantee or other suretyship to make a material amendment to the obligations to which the guarantee or suretyship relates without further reference to the guarantor or surety. |
| 13. | An Irish court may not give effect to any provision of a contract which (i) provides for a matter to be determined by future agreement or negotiation or (ii) it considers to be devoid of any meaning, vague or uncertain. |
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| 14. | A right of set-off provided for in a contract or another document may not be enforceable in all circumstances. |
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Exhibit 5.2
March 23, 2021
STERIS plc
STERIS Irish FinCo Unlimited Company
STERIS Corporation
STERIS Limited
c/o STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2 Ireland D02 R296
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for STERIS plc, a public limited company incorporated under the laws of Ireland (“Parent”), STERIS Irish FinCo Unlimited Company, a public unlimited company incorporated under the laws of Ireland (the “STERIS Irish FinCo”), STERIS Corporation, an Ohio Corporation ( “STERIS Corp.”), and STERIS Limited, a private limited company organized under the laws of England and Wales (“STERIS Limited”), in connection with the authorization of the possible issuance and sale from time to time, on a delayed basis, of an indeterminate amount of: (i) ordinary shares, par value $0.001 per share, of Parent (the “Ordinary Shares”); (ii) preferred shares, par value $0.001 per share, of Parent (the “Preferred Shares”), in one or more series; (iii) senior debt securities of the Parent (the “Parent Debt Securities”), in one or more series; (iv) senior debt securities of STERIS Irish FinCo (the “FinCo Debt Securities,” and together with Parent Debt Securities, the “Debt Securities”), in one or more series; (v) warrants to purchase Ordinary Shares, Preferred Shares or Parent Debt Securities (the “Warrants”); and (v) units consisting of two or more of the Preferred Shares, Ordinary Shares, Parent Debt Securities (including any applicable Guarantees (as defined below)), FinCo Debt Securities (including any applicable Guarantees) or Warrants, or any combination of such securities (the “Units”), in each case, as contemplated by the Registration Statement on Form S-3 to which this opinion is an exhibit (the “Registration Statement”). STERIS Irish FinCo’s obligations under the FinCo Debt Securities may be guaranteed by Parent, STERIS Corp. and STERIS Limited (the “FinCo Debt Guarantees”). Parent’s obligations under the Parent Debt Securities may be guaranteed by STERIS Irish FinCo, STERIS Corp. and STERIS Limited (the “Parent Debt Guarantees”). In their capacities as guarantors, STERIS Irish FinCo, STERIS Corp. and STERIS Limited are collectively referred to herein as the “Subsidiary Guarantors,” and the Subsidiary Guarantors and Parent, it its capacity as guarantor of FinCo Debt Securities, are collectively referred to herein as the “Guarantors.” The FinCo Debt Guarantees and the Parent Debt Guarantees are collectively referred to herein as the “Guarantees.” The Ordinary Shares, the Preferred Shares, the Debt Securities, the Warrants, the Units and the Guarantees are collectively referred to herein as the “Securities.” The Securities are to be issued from time to time pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”).
In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinions. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:
| 1. | The Debt Securities, when executed by STERIS Irish FinCo or Parent, as applicable, and authenticated by the trustee in accordance with the applicable Indenture (as defined below), issued and sold in accordance with the Registration Statement and delivered to the purchaser or purchasers thereof upon receipt by STERIS Irish FinCo or Parent, as applicable, of such lawful consideration therefor as the Board of Directors (or an authorized committee thereof) or other governing body of STERIS Irish FinCo or Parent, as applicable, may determine, will constitute valid and binding obligations of STERIS Irish FinCo or Parent, as applicable. |
| STERIS plc |
| |
| STERIS Irish FinCo Unlimited Company | ||
| STERIS Corporation | ||
| STERIS Limited | ||
| March 23, 2021 | ||
| Page 2 |
| 2. | Upon the execution, authentication, issuance, sale and delivery of the FinCo Debt Securities as described above, the FinCo Debt Guarantees will constitute valid and binding obligations of Parent and each applicable Subsidiary Guarantor, as applicable. |
| 3. | Upon the execution, authentication, issuance, sale and delivery of the Parent Debt Securities as described above, the Parent Debt Guarantees will constitute valid and binding obligations of each Subsidiary Guarantor. |
| 4. | The Warrants, upon receipt by Parent of such lawful consideration therefor as Parent’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of Parent. |
| 5. | The Units, upon receipt by Parent of such lawful consideration therefor as Parent’s Board of Directors (or an authorized committee thereof) may determine, will constitute valid and binding obligations of Parent. |
In rendering the foregoing opinions, we have assumed that: (i) the Registration Statement, and any amendments thereto, will have become effective (and will remain effective at the time of issuance of any Securities thereunder); (ii) a prospectus supplement describing each class and/or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law and relevant rules and regulations of the Securities and Exchange Commission (the “Commission”), will be timely filed with the Commission; (iii) the definitive terms of each class and/or series of Securities will have been established in accordance with the authorizing resolutions adopted by the Board of Directors (or an authorized committee thereof) or other governing body of each of Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable, and applicable law; (iv) Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable, will issue and deliver the Securities in the manner contemplated by the Registration Statement and any Securities issuable upon conversion, exchange or exercise of any other Security will have been authorized and reserved for issuance, in each case within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities; (v) the resolutions authorizing Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable, to issue, offer and sell the Securities will have been adopted by the Board of Directors (or an authorized committee thereof) or other governing body of Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable, and will be in full force and effect at all times at which the Securities are offered or sold by Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable; (vi) all Securities will be issued in compliance with applicable federal and state securities laws; and (vii) any Indenture, Warrant Agreement or Unit Agreement (each as defined below) will be governed by and construed in accordance with the laws of the State of New York and will constitute a valid and binding obligation of each party thereto other than Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited.
With respect to any Securities consisting of any series of Debt Securities and the Guarantees, we have further assumed that: (i) such Debt Securities and Guarantees will have been issued pursuant to one or more indentures that have been executed and delivered by Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable, and the applicable trustee in a form approved by us (each, an “Indenture”), and such Indenture will have been qualified under the Trust Indenture Act of 1939, as amended; (ii) all terms of such Debt Securities or Guarantees not provided for in the applicable Indenture will have been established in accordance with the provisions of such Indenture and reflected in appropriate documentation approved by us and, if applicable, duly executed and delivered by Parent, STERIS Irish FinCo, STERIS Corp. and STERIS Limited, as applicable, and the trustee; and (iii) the Debt Securities will be executed, authenticated, issued and delivered, and the Guarantees will be issued and delivered, in accordance with the provisions of the applicable Indenture.
| STERIS plc |
| |
| STERIS Irish FinCo Unlimited Company | ||
| STERIS Corporation | ||
| STERIS Limited | ||
| March 23, 2021 | ||
| Page 3 |
With respect to any Securities consisting of Warrants, we have further assumed that: (i) the warrant agreement, approved by us, relating to the Warrants (the “Warrant Agreement”) to be entered into between the Parent and an entity selected by Parent to act as the warrant agent (the “Warrant Agent”) will have been authorized, executed and delivered by Parent and the Warrant Agent; and (ii) the Warrants will be authorized, executed and delivered by Parent and the Warrant Agent in accordance with the provisions of the Warrant Agreement.
With respect to any Securities consisting of Units, we have further assumed that each component of such Unit will be authorized, validly issued and fully paid (to the extent applicable) as contemplated by the Registration Statement and the applicable unit agreement (the “Unit Agreement”), if any.
For the purposes of our opinions set forth above, we have further assumed that (i) Parent is a public limited company existing and in good standing (or its equivalent) under the laws of Ireland; (ii) STERIS Irish FinCo is a [public unlimited] company existing and in good standing (or its equivalent) under the laws of Ireland; (iii) STERIS Limited is a private limited company existing and in good standing (or its equivalent) under the laws of England and Wales; (iv) the Indentures, the Warrant Agreement, the Unit Agreement and the applicable Guarantees of Parent, STERIS Irish FinCo and STERIS Limited (a) will have been authorized by all necessary corporate power of Parent, STERIS Irish FinCo and STERIS Limited, as applicable, and (b) will have been executed and delivered by Parent, STERIS Irish FinCo and STERIS Limited under the laws of Ireland and England and Wales, as applicable; and (iii) the execution, delivery, performance and compliance with the terms and provisions of the Indentures, the Warrant Agreement, the Unit Agreement and the applicable Guarantee of Parent, STERIS Irish FinCo and STERIS Limited does not and will not violate or conflict with the laws of Ireland or England and Wales, as applicable, the provisions of its memorandum and articles of association, articles of incorporation or other governing documents or any rule, regulation, order, decree, judgment, instrument or agreement binding upon or applicable to Parent, STERIS Irish FinCo, STERIS Limited or its respective properties.
The opinions expressed herein are limited by bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights generally, and by general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or equity.
For purposes of our opinions insofar as they relate to the Guarantors, we have assumed that the obligations of each Guarantor under the Guarantees are, and would be deemed by a court of competent jurisdiction to be, in furtherance of its corporate or other entity purposes, or necessary or convenient to the conduct, promotion or attainment of the business of the respective Guarantor and will benefit the respective Guarantor, directly or indirectly.
As to facts material to the opinions and assumptions expressed herein, we have relied upon oral or written statements and representations of officers and other representatives of Parent, STERIS Irish FinCo, STERIS Corp., STERIS Limited and others. The opinions expressed herein are limited to the laws of the State of New York and the laws of the State of Ohio, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.2 to the Registration Statement and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Jones Day
Exhibit 5.3
| Date | 23 March 2021 |
STERIS plc
STERIS Irish FinCo Unlimited Company
STERIS Corporation
STERIS Limited
c/o STERIS plc
70 Sir John Rogerson’s Quay
Dublin 2
Ireland D02 R296
Re: Registration Statement on Form S-3 filed by, amongst others, STERIS plc (a public limited company incorporated in Ireland, the “Parent”), STERIS Irish FinCo Unlimited Company (a public unlimited company incorporated in Ireland, the “Issuer”) and STERIS Limited (a company incorporated in England and Wales, the “Company”) relating to the Registration (defined below)
Dear Sirs
| 1. | We have acted as advisers to the Company as to English law in relation to the Registration Statement on Form S-3 to which this opinion will be filed as an exhibit (the “Registration Statement”). |
| 2. | The Registration Statement relates to the registration (the “Registration”) under the US Securities Act of 1933 as amended (the “Securities Act”) of securities that may be issued by the Parent and certain of its subsidiaries (including the Issuer and the Company) from time to time, including debt securities that may be issued by the Parent or the Issuer (the “Debt Securities”). The Debt Securities, if issued by the Parent or the Issuer, may be fully and unconditionally guaranteed on a joint and several basis by the applicable guarantors named in the Registration Statement, including the Company. |
| 3. | This opinion letter (the “Opinion”) is delivered to you in connection with the Registration Statement. |
| 4. | For the purposes of giving this Opinion we have examined the following documents: |
| (a) | a scanned copy of the Registration Statement dated 23 March 2021; |
| Continued 2 |
|
| (b) | a copy of the articles of association of the Company certified to us by a director of the Company as being complete and correct and in full force and effect as of the date hereof (the “Articles of Association”); and |
| (c) | certified copies of circular resolutions of the directors of the Company passed on 19 March 2021 (the “Resolutions”) relating to the Registration Statement. |
We have not considered any other documents in connection with this Opinion.
| 5. | We have only made the following searches and enquiries in England and Wales for the purpose of giving this Opinion: |
| (a) | an online search on 18 March 2021 and updated on 23 March 2021 of the public documents of the Company kept at Companies House in Cardiff (the “Company Search”); and |
| (b) | an enquiry by Legalinx Ltd on our behalf on 23 March 2021 in respect of the Company with the Central Registry of Winding-up Petitions at the Companies Court in London (the “Enquiry”). |
| 6. | This Opinion is given only with respect to English law in force and published at the date of this Opinion as applied by the English courts as at the date of this Opinion. We have made no investigation of, and therefore express or imply no opinion as to, the laws of any other jurisdiction or as to the application of English or any other law by any other courts. In particular we express no opinion on European Union law (as retained within English law, following the United Kingdom’s departure from the European Union) as it affects any jurisdiction other than England. To the extent that the laws of any jurisdiction other than England may be relevant, we have made no independent investigation thereof and our opinion is subject to the effect of such laws, including the matters contained in the opinion of Jones Day as to matters of New York law. We express no view on the validity of the matters set out in such opinion. |
| 7. | This Opinion is given on the basis that it and any non-contractual obligations arising out of it are governed by and shall be construed in accordance with English law as at today’s date. The English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with this Opinion. |
| 8. | For the purposes of giving this Opinion we have, with your consent and without investigation on our part, assumed the following: |
| (a) | the genuineness of all signatures, stamps and seals and the authenticity and completeness of all documents submitted to us as originals; |
| (b) | the conformity to the originals of all documents submitted to us in translated, certified, photostatic, electronic or copy form and that where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen; |
| Continued 3 |
|
| (c) | that the issuance of the Debt Securities, the giving of any guarantee by the Company in relation thereto and the transactions referred to in the Registration Statement or will be carried out, by each of the parties in good faith, for bona fide commercial reasons, for the purpose of carrying on their respective businesses (and, in the case of each of the Company, in furtherance of its objects, whether contained in its Articles of Association or otherwise), for the benefit of each of them respectively and on arm’s length commercial terms; |
| (d) | that the Company will not give any guarantee in relation to the Debt Securities in consequence of bad faith, fraud, coercion, duress, misrepresentation or undue influence or in connection with money laundering or any other unlawful activity (including any breach of anti-terrorism, anti-corruption and human rights laws and regulations); |
| (e) | the truth, accuracy, correctness and completeness in all respects of all information, statements, certifications, acknowledgements, confirmations and representations and warranties (with the exception of representations and warranties on matters on which we have specifically and expressly given our opinion in this Opinion); |
| (f) | that the Resolutions were duly passed as circular resolutions of the directors of the Company in accordance with the Articles of Association (using the correct procedure), that all of the directors signed the Resolutions, and that the facts on which the Resolutions were based were true and the directors’ decisions were taken in the light of appropriate advice and in good faith and on reasonable grounds for believing that the transactions contemplated thereby would be most likely to promote the success of the Company for the benefit of its members as a whole. The Resolutions have not subsequently been amended, rescinded, revoked or superseded and are in full force and effect; |
| (g) | that the information revealed by the Company Search was accurate in all respects and has not since then been altered or supplemented; |
| (h) | that the information revealed by the Enquiry was accurate in all respects and has not since then been altered or supplemented; |
| (i) | the Company is able to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or would otherwise be solvent pursuant to any legislation applicable to it at the time of executing any guarantee of the Debt Securities (“a Guarantee”), and will not, as a consequence of executing any Guarantee, become unable to pay its debts within the meaning of that section or otherwise be insolvent pursuant to any applicable legislation; |
| Continued 4 |
|
| (j) | the Company’s “centre of main interests” (as that term is used in Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) (“EU Recast Insolvency Regulation”) as incorporated into English law pursuant to the European Union (Withdrawal) Act 2018 and The Insolvency (Amendment) (EU Exit) Regulations 2019 (SI 2019/146) and in The Cross-Border Insolvency Regulations 2006 (SI 2006/1030) (which implement the UNCITRAL Model Law on Cross-Border Insolvency in the UK) (“Cross-Border Insolvency Regulations”)) is situated in the United Kingdom and it has no “establishment” (as that term is defined in Article 2(10) of the EU Recast Insolvency Regulation and in the Cross-Border Insolvency Regulations) in any other jurisdiction; and |
| (k) | there is no other fact, matter or document which would affect this Opinion and which was not revealed by the documents which we have reviewed for the purposes of this Opinion or the searches and enquiries made, including, without limitation, whether: |
| (i) | the Company has passed a resolution for its winding up or dissolution; |
| (ii) | any proceedings have been commenced or steps taken for the winding up of the Company or for the appointment of any administrator, an administrative receiver or receiver or manager in relation to the Company or any assets or revenue of the Company; and/or |
| (iii) | any analogous procedure or step described in paragraphs (i) and (ii) above has been taken in any jurisdiction in relation to the Company. |
| 9. | Based on the assumptions set out in paragraph 8 above and subject to the reservations, qualifications and observations set out in paragraph 10 below and any matters of fact not disclosed to us, we are of the opinion that: |
| (a) | the Company has been incorporated and registered with limited liability in England and Wales and: |
| (i) | the Company Search revealed no order or resolution for the winding up of the Company and no notice of appointment in respect of the Company of a liquidator, receiver, administrative receiver or administrator; and |
| (ii) | the Enquiry indicated that no petition for the winding up of the Company had been presented; and |
| (b) | the Company has the requisite corporate capacity to provide a guarantee of the Debt Securities. |
| Continued 5 |
|
| 10. | The opinions set out in paragraph 9 above are subject to the following qualifications, reservations and observations: |
| (a) | We express no opinion as to matters of fact. We have not been responsible for investigating or verifying the accuracy of the facts (including statements of foreign law), or the reasonableness of any statement of opinion or intention, contained in or relevant to any document referred to in this Opinion, or that no material facts have been omitted therefrom. |
| (b) | The Company Search is not capable of revealing conclusively whether or not: |
| (i) | a winding up order has been made or a resolution passed for the winding up of a company; |
| (ii) | an administration order has been made; or |
| (iii) | a receiver, administrative receiver, administrator, liquidator or moratorium monitor has been appointed, |
since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the public database or recorded on the public microfiches of the relevant company immediately.
In addition, the Company Search is not capable of revealing, prior to the making of the relevant order, whether or not a winding up petition has been presented or an application for an administration order has been made nor will the Company Search conclusively reveal whether a charge or other restriction or prohibition has been created in relation to the real property owned by the relevant party.
| (c) | The Enquiry relates only to a compulsory winding up and is not capable of revealing conclusively whether or not a winding up petition in respect of a compulsory winding up has been presented, since details of the petition may not have been entered on the records of the Central Registry of Winding up Petitions immediately or, in the case of a petition presented to a County Court, may not have been notified to the Central Registry and entered on such records at all, and the response to an enquiry only relates to current petitions (and not those which may have been subsequently withdrawn or otherwise dealt with). |
| (d) | We give no opinion as to tax. |
| 11. | This Opinion is rendered to you and is solely for your benefit in connection with the transactions covered hereby. This Opinion may not be relied upon by you for any other purpose, or furnished to, quoted to or relied upon by any other person, firm or corporation for any purpose, without our prior written consent. Notwithstanding the foregoing, we hereby consent to the filing of this Opinion as Exhibit 5.3 to the Registration Statement and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of the Registration Statement on the basis that: |
| Continued 6 |
|
(a) such disclosure is on a solely non-reliance basis;
| (b) | this Opinion speaks only as of the date hereof; and |
| (c) | we have no responsibility or obligation to update this opinion letter, to consider its applicability or correctness to any person or entity other than you, or to take into account changes in law, facts or any other developments of which we may later become aware. |
In giving such consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission thereunder
Yours faithfully
/s/ Jones Day
Exhibit 15.1
LETTER REGARDING UNAUDITED INTERIM FINANCIAL INFORMATION
Shareholders and Board of Directors
STERIS plc
We are aware of the incorporation by reference in the Registration Statement (Form S-3) and related Prospectus of STERIS plc for the registration of debt securities, guarantees of debt securities, ordinary shares, preferred shares, warrants, and units of our reports dated August 7, 2020, November 6, 2020 and February 9, 2021 relating to the unaudited consolidated interim financial statements of STERIS plc that are included in its Forms 10-Q for the quarters ended June 30, 2020, September 30, 2020 and December 31, 2020.
/s/ Ernst & Young LLP
Cleveland, Ohio
March 23, 2021
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-3) and related Prospectus of STERIS plc for the registration of debt securities, guarantees of debt securities, ordinary shares, preferred shares, warrants, and units and to the incorporation by reference therein of our report dated May 29, 2020, except for Notes 1, 2, 3, 11 and 18, as to which the date is February 9, 2021, with respect to the consolidated financial statements and schedule of STERIS plc included in its Current Report on Form 8-K dated February 9, 2021, and our report dated May 29, 2020, with respect to the effectiveness of internal control over financial reporting of STERIS plc, included in its Annual Report (Form 10-K) for the year ended March 31, 2020, both filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
March 23, 2021
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated September 25, 2020 relating to the financial statements of Cantel Medical Corp. and the effectiveness of Cantel Medical Corp.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Cantel Medical Corp. for the year ended July 31, 2020. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
March 23, 2021
Exhibit 23.3
Consent of Independent Auditor
We consent to the incorporation by reference in this Registration Statement on Form S-3 and related prospectus of STERIS plc of our reports dated March 8, 2019 and March 5, 2018, relating to the consolidated financial statements of Dental Holding, LLC and Subsidiaries, appearing in Amendment No. 1 to Form 8-K filed by Cantel Medical Corp. on December 16, 2019. We also consent to the reference of our firm under the heading “Experts” in such Registration Statement.
/s/ RSM US LLP
Schaumburg, Illinois
March 23, 2021
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and officers of STERIS plc, an Irish public limited company, does hereby constitute and appoint Walter M Rosebrough, Jr., Michael J. Tokich and J. Adam Zangerle, and each of them acting individually, as the true and lawful attorney-in-fact or attorneys-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute on behalf of the undersigned (i) one or more Registration Statements on Form S-3 (the “Form S-3 Registration Statement”) relating to the registration of the offer of certain securities, including debt securities, guarantees of debt securities, ordinary shares, common stock, preferred stock, warrants, depositary shares and units, (ii) any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements and registration statements filed pursuant to Rule 462(b) of the Securities Act of 1933 and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-3 Registration Statement, in each case, granting to said attorneys, and each of them individually, full power and authority to do or cause to be done any and all acts and things whatsoever deemed necessary, appropriate or desirable by said attorneys, or any one of them, to be in the premises, as fully to all intents and purposes as the undersigned might or could do in person, and hereby ratifying and approving the acts of said attorneys, or any one of them, and any such substitute prior to the execution hereof.
This Power of Attorney may be executed in multiple counterparts, each of which will be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 11th day of February, 2021.
| /s/ Walter M Rosebrough, Jr. Walter M Rosebrough, Jr. President and Chief Executive Officer, Director |
/s/ Michael J. Tokich Michael J. Tokich Senior Vice President and Chief Financial Officer | |||
| /s/ Karen L. Burton Karen L. Burton Vice President, Controller and Chief Accounting Officer |
/s/ Dr. Mohsen M. Sohi Dr. Mohsen M. Sohi Chairman of the Board | |||
| /s/ Richard C. Breeden Richard C. Breeden Director |
/s/ Daniel A Carestio Daniel A. Carestio Director | |||
| /s/ Cynthia L. Feldmann Cynthia L. Feldmann Director |
/s/ Christopher Holland Christopher Holland Director | |||
| /s/ Dr. Jacqueline B. Kosecoff Dr. Jacqueline B. Kosecoff Director |
/s/ David B. Lewis David B. Lewis Director | |||
| /s/ Dr. Nirav R. Shah Dr. Nirav R. Shah Director |
/s/ Dr. Richard M Steeves Dr. Richard M. Steeves Director | |||
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors of STERIS Irish FinCo Unlimited Company, a public unlimited company incorporated under the laws of Ireland, does hereby constitute and appoint Walter M Rosebrough, Jr., Michael J. Tokich and J. Adam Zangerle, and each of them acting individually, as the true and lawful attorney-in-fact or attorneys-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute on behalf of the undersigned (i) one or more Registration Statements on Form S-3 (the “Form S-3 Registration Statement”) relating to the registration of the offer of certain securities, including debt securities and guarantees of debt securities by STERIS Irish Finco Unlimited Company, (ii) any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements and registration statements filed pursuant to Rule 462(b) of the Securities Act of 1933 and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-3 Registration Statement, in each case, granting to said attorneys, and each of them individually, full power and authority to do or cause to be done any and all acts and things whatsoever deemed necessary, appropriate or desirable by said attorneys, or any one of them, to be in the premises, as fully to all intents and purposes as the undersigned might or could do in person, and hereby ratifying and approving the acts of said attorneys, or any one of them, and any such substitute prior to the execution hereof.
This Power of Attorney may be executed in multiple counterparts, each of which will be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 15th day of March, 2021.
| /s/ Brian Cooper |
/s/ John Gilsenan | |||
| Name: Brian Cooper Title: Director |
Name: John Gilsenan Title: Director | |||
| /s/ Michael J. Tokich |
/s/ Renator G. Tamaro | |||
| Name: Michael J. Tokich Title: Director |
Name: Renato G. Tamaro Title: Director | |||
| /s/ John Robert Schloss |
||||
| Name: John Robert Schloss Title: Director |
||||
Exhibit 24.3
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors and officers of STERIS Corporation, an Ohio corporation, does hereby constitute and appoint Walter M Rosebrough, Jr., Michael J. Tokich and J. Adam Zangerle, and each of them acting individually, as the true and lawful attorney-in-fact or attorneys-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute on behalf of the undersigned (i) one or more Registration Statements on Form S-3 (the “Form S-3 Registration Statement”) relating to the registration of the offer of certain securities, including guarantees of debt securities by STERIS Corporation, (ii) any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements and registration statements filed pursuant to Rule 462(b) of the Securities Act of 1933 and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-3 Registration Statement, in each case, granting to said attorneys, and each of them individually, full power and authority to do or cause to be done any and all acts and things whatsoever deemed necessary, appropriate or desirable by said attorneys, or any one of them, to be in the premises, as fully to all intents and purposes as the undersigned might or could do in person, and hereby ratifying and approving the acts of said attorneys, or any one of them, and any such substitute prior to the execution hereof.
This Power of Attorney may be executed in multiple counterparts, each of which will be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 19th day of March, 2021.
| /s/ Walter M Rosebrough, Jr.
Walter M Rosebrough, Jr. President and Chief Executive Officer |
/s/ Michael J. Tokich
Michael J. Tokich Senior Vice President and Chief Financial Officer, Director | |||
| /s/ Karen L. Burton
Karen L. Burton Vice President, Controller and Chief Accounting Officer |
/s/ Ronald E. Snyder
Ronald E. Snyder Director | |||
Exhibit 24.4
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each of the undersigned directors of STERIS Limited, a private limited company incorporated under the laws of England and Wales, does hereby constitute and appoint Walter M Rosebrough, Jr., Michael J. Tokich and J. Adam Zangerle, and each of them acting individually, as the true and lawful attorney-in-fact or attorneys-in-fact for each of the undersigned, with full power of substitution and resubstitution, and in the name, place and stead of each of the undersigned, to execute on behalf of the undersigned (i) one or more Registration Statements on Form S-3 (the “Form S-3 Registration Statement”) relating to the registration of the offer of certain securities, including guarantees of debt securities by STERIS Limited, (ii) any and all amendments, supplements and exhibits thereto, including pre-effective and post-effective amendments or supplements and registration statements filed pursuant to Rule 462(b) of the Securities Act of 1933 and (iii) any and all applications or other documents to be filed with the Securities and Exchange Commission or any state securities commission or other regulatory authority or exchange with respect to the securities covered by the Form S-3 Registration Statement, in each case, granting to said attorneys, and each of them individually, full power and authority to do or cause to be done any and all acts and things whatsoever deemed necessary, appropriate or desirable by said attorneys, or any one of them, to be in the premises, as fully to all intents and purposes as the undersigned might or could do in person, and hereby ratifying and approving the acts of said attorneys, or any one of them, and any such substitute prior to the execution hereof.
This Power of Attorney may be executed in multiple counterparts, each of which will be deemed an original with respect to the person executing it.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the 19th day of March, 2021.
| /s/ J. Adam Zangerle | ||
| Name: | J. Adam Zangerle | |
| Title: | Director | |
| /s/ Michael J. Tokich | ||
| Name: | Michael J. Tokich | |
| Title: | Director | |
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
David A. Schlabach
U.S. Bank National Association
1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11
(216) 623-5987
(Name, address and telephone number of agent for service)
STERIS plc
(Issuer with respect to the Securities)
| Ireland | 98-1455064 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
STERIS Irish FinCo Unlimited Company
(Issuer with respect to the Securities)
| Ireland | 98-1271422 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
STERIS Corporation
(Issuer with respect to the Securities)
| Ohio | 34-1482024 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
STERIS Limited
(Issuer with respect to the Securities)
| England and Wales | 98-1203539 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| c/o STERIS plc 70 Sir John Rogerson’s Quay Dublin 2 Ireland |
D02 R296 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Debt Securities and Guarantee of Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business.** |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers.** |
| 4. | A copy of the existing bylaws of the Trustee.*** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25 to registration statement on form S-3ASR, Registration Number 333-236877 filed on March 4, 2020. |
| *** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cleveland in the State of Ohio on the 8th day of March, 2021.
| By: | /s/ David A. Schlabach | |
| David A. Schlabach | ||
| Vice President |
3
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: March 8, 2021
| By: | /s/ David A. Schlabach | |
| David A. Schlabach | ||
| Vice President |
4
Exhibit 7
U.S. Bank Trust National Association
Statement of Financial Condition
As of 12/31/2020
($000’s)
| 12/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 640,199 | ||
| Securities |
0 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
5 | |||
| Intangible Assets |
16,049 | |||
| Other Assets |
18,072 | |||
|
|
|
|||
| Total Assets |
$ | 674,324 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
12,893 | |||
|
|
|
|||
| Total Liabilities |
$ | 12,893 | ||
| Equity |
||||
| Common and Preferred Stock |
1,000 | |||
| Surplus |
466,570 | |||
| Undivided Profits |
193,861 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 661,431 | ||
| Total Liabilities and Equity Capital |
$ | 674,324 | ||
5
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
David A. Schlabach
U.S. Bank National Association
1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11
(216) 623-5987
(Name, address and telephone number of agent for service)
STERIS Irish FinCo Unlimited Company
(Issuer with respect to the Securities)
| Ireland | 98-1271422 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
STERIS plc
(Issuer with respect to the Securities)
| Ireland | 98-1455064 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
STERIS Corporation
(Issuer with respect to the Securities)
| Ohio | 34-1482024 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
STERIS Limited
(Issuer with respect to the Securities)
| England and Wales | 98-1203539 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| c/o STERIS plc 70 Sir John Rogerson’s Quay Dublin 2 Ireland |
D02 R296 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Debt Securities and Guarantee of Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business.** |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers.** |
| 4. | A copy of the existing bylaws of the Trustee.*** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25 to registration statement on form S-3ASR, Registration Number 333-236877 filed on March 4, 2020. |
| *** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Cleveland in the State of Ohio on the 8th day of March, 2021.
| By: | /s/ David A. Schlabach | |
| David A. Schlabach | ||
| Vice President |
3
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: March 8, 2021
| By: | /s/ David A. Schlabach | |
| David A. Schlabach | ||
| Vice President |
4
Exhibit 7
U.S. Bank Trust National Association
Statement of Financial Condition
As of 12/31/2020
($000’s)
| 12/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 640,199 | ||
| Securities |
0 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
5 | |||
| Intangible Assets |
16,049 | |||
| Other Assets |
18,072 | |||
|
|
|
|||
| Total Assets |
$ | 674,324 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
12,893 | |||
|
|
|
|||
| Total Liabilities |
$ | 12,893 | ||
| Equity |
||||
| Common and Preferred Stock |
1,000 | |||
| Surplus |
466,570 | |||
| Undivided Profits |
193,861 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 661,431 | ||
| Total Liabilities and Equity Capital |
$ | 674,324 | ||
5