UBER 8-K
Uber Technologies, Inc (UBER)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) |
(Address of principal executive offices, including zip code)
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging
growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01 | Other Events. |
On September 15, 2026, Uber Technologies, Inc. (the “Company”) completed a registered public offering of €750,000,000 aggregate principal amount of the Company’s 3.750% Senior Notes due 2029, €1,000,000,000 aggregate principal amount of the Company’s 4.125% Senior Notes due 2032, €1,000,000,000 aggregate principal amount of the Company’s 4.375% Senior Notes due 2034, €1,000,000,000 aggregate principal amount of the Company’s 4.750% Senior Notes due 2038, and €750,000,000 aggregate principal amount of the Company’s 5.250% Senior Notes due 2046 (together, the “Notes”). The Notes are the Company’s senior unsecured debt obligations. The offering was made pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-293483) (the “Registration Statement”), including a Prospectus and a related Prospectus Supplement dated September 9, 2026 filed with the Securities and Exchange Commission (“SEC”). In connection with the issuance of the Notes, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, Deutsche Bank AG, London Branch, Merrill Lynch International and BNP PARIBAS, as representatives of the several underwriters listed in Schedule II to the Underwriting Agreement.
The Notes were issued pursuant to the Indenture, dated as of September 9, 2024 (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated September 15, 2026 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) between the Company and the Trustee. The Company intends to use the net proceeds from the offering for general corporate purposes.
The above descriptions of the Underwriting Agreement, the Indenture and the Notes do not purport to be complete, and each is qualified in its entirety by reference to the Underwriting Agreement, the Indenture and the forms of Notes, as applicable, copies of which are filed as exhibits to this Current Report on Form 8-K and are incorporated herein by reference. The Company is filing this Current Report on Form 8-K to file certain items with the SEC that are to be incorporated by reference into the Registration Statement.
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements within the meaning of the federal securities laws. These statements include, but are not limited to, statements regarding anticipated use of proceeds from the offering. Forward-looking statements include all statements that are not historical facts. In some cases, forward-looking statements can be identified by terms such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “will,” “would” or similar expressions and the negatives of those terms. Forward-looking statements involve known and unknown risks, uncertainties and other factors that may cause the Company’s actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. These risks and uncertainties include, among others, uncertainties and other factors relating to the intended use of proceeds from the offering and the sale of the Notes. These and other risks are more fully described in the Company’s SEC filings and reports, including in the section titled “Risk Factors” in its Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2026 and other filings that the Company makes from time to time with the SEC, which are available on the SEC’s website at www.sec.gov. All information provided in this Current Report on Form 8-K is as of the date of this Current Report on Form 8-K and any forward-looking statements contained herein are based on assumptions that the Company believes to be reasonable as of such date. Undue reliance should not be placed on the forward-looking statements in this Current Report on Form 8-K, which are based on information available to the Company on the date hereof. Except as required by law, the Company disclaims any obligation to update these forward-looking statements as a result of new information, future events, changes in expectations or otherwise.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit Number | Description | |
| 1.1 | Underwriting Agreement, dated September 9, 2026, by and among Uber Technologies, Inc. and Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, Deutsche Bank AG, London Branch, Merrill Lynch International and BNP PARIBAS, as representatives of the several underwriters named therein. | |
| 4.1 | Third Supplemental Indenture, dated as of September 15, 2026, by and between Uber Technologies, Inc. and U.S. Bank Trust Company, National Association. | |
| 4.2 | Form of Notes (included in Exhibit 4.1 above). | |
| 5.1 | Opinion of Cooley LLP. | |
| 23.1 | Consent of Cooley LLP (contained in Exhibit 5.1 above). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| UBER TECHNOLOGIES, INC. | |
| Date: September 15, 2026 | By: /s/ Dara Khosrowshahi |
| Dara Khosrowshahi | |
| Chief Executive Officer |
Exhibit 1.1
Execution Version
UBER TECHNOLOGIES, INC.
€750,000,000 3.750% SENIOR NOTES DUE 2029
€1,000,000,000 4.125% SENIOR NOTES DUE 2032
€1,000,000,000 4.375% SENIOR NOTES DUE 2034
€1,000,000,000 4.750% SENIOR NOTES DUE 2038
€750,000,000 5.250% SENIOR NOTES DUE 2046
UNDERWRITING AGREEMENT
September 9, 2026
September 9, 2026
Goldman Sachs & Co. LLC
Morgan Stanley & Co. International plc
Deutsche Bank AG, London Branch
Merrill Lynch International
BNP PARIBAS
As Representatives of the several Underwriters listed
in Schedule II hereto
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o Morgan Stanley & Co. International plc
25 Cabot Square
Canary Wharf
London E14 4QA
United Kingdom
c/o Deutsche Bank AG, London Branch
21 Moorfields
London EC2Y 9DB
United Kingdom
c/o Merrill Lynch International
2 King Edward Street
London EC1A 1HQ
United Kingdom
c/o BNP PARIBAS
16, boulevard des Italiens
75009 Paris
France
Ladies and Gentlemen:
Uber Technologies, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, Deutsche Bank AG, London Branch, Merrill Lynch International and BNP PARIBAS are acting as representatives (the “Representatives”), the principal amount of its debt securities identified in Schedule I hereto (the “Securities”), to be issued under the indenture specified in Schedule I hereto (the “Indenture”) between the Company and the Trustee identified in such schedule (the “Trustee”). If the firm or firms listed in Schedule II hereto include only the Representatives listed in Schedule I hereto, then the terms “Underwriters” and “Representatives” as used herein shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (the file number of which is set forth in Schedule I hereto), including a prospectus, relating to the securities (the “Shelf Securities”), including the Securities, to be issued from time to time by the Company. The registration statement as amended to the date of this Underwriting Agreement (“Agreement”), including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf Securities dated February 13, 2026 in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the documents and pricing information set forth opposite the caption “Time of Sale Prospectus” in Schedule I hereto, “Time of Sale” means the first time when sales of the Securities are made, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or threatened by the Commission. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
| 2 |
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as amended or supplemented, if applicable, will, as of the date of such amendment or supplement, comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement and as of the Closing Date, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the Underwriter Information (as defined in Section 8(a) of this Agreement) or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee.
| 3 |
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies, or if used after the effective date of this Agreement will comply, in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule I hereto, forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation (to the extent the concept of good standing or an equivalent concept is applicable in such jurisdiction), has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus. The Company is duly qualified to transact business and is in good standing in each jurisdiction (to the extent the concept of good standing is applicable in such jurisdiction) in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X under the Exchange Act) of the Company (the “Major Subsidiaries”) has been duly organized, is validly existing and in good standing under the laws of the jurisdiction of its organization (to the extent the concept of good standing is applicable in such jurisdiction), and has the corporate or other organizational power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus. (i) Each Major Subsidiary is duly qualified to transact business and is in good standing in each jurisdiction (to the extent the concept of good standing is applicable in such jurisdiction) in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the Company and its subsidiaries, taken as a whole; (ii) except as described in the Time of Sale Prospectus, all of the issued equity interests of each Major Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable (to the extent that such concepts are applicable in such jurisdiction) and are owned directly or indirectly by the Company or a wholly-owned subsidiary of the Company, in all material respects, and (iii) except as described in the Time of Sale Prospectus, all of the issued equity interests of each Major Subsidiary are free and clear of all liens, encumbrances, equities or claims, except as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Company and its subsidiaries, taken as a whole.
| 4 |
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The Indenture has been duly authorized by the Company and, on the Closing Date, will have been duly qualified under the Trust Indenture Act, executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Trustee, will constitute a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable principles of general applicability (collectively, the “Enforceability Exceptions”).
(h) The Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture pursuant to which such Securities are to be issued.
(i) The Securities to be purchased by the Underwriters from the Company will on the Closing Date be in the form contemplated by the Indenture. The Securities and the Indenture will conform in all material respects to the descriptions thereof in the Time of Sale Prospectus and Prospectus.
(j) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the Indenture, and the issuance and delivery of the Securities, and the consummation of the transactions contemplated hereby and thereby and by the Time of Sale Prospectus and Prospectus, will not (i) contravene any provision of applicable law, (ii) contravene any provision of the certificate of incorporation or bylaws of the Company, (iii) contravene any provision of, conflict with or constitute a breach of, or Default (as defined in Section 1(y)) or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument (as defined in Section 1(y)), any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (iv) contravene any provision of any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except that in the case of clauses (i), (iii) and (iv) as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power and ability of the Company to perform its obligations under this Agreement. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries. No consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement and the Indenture, or the issuance and delivery of the Securities, or the consummation of the transactions contemplated hereby and thereby and by the Time of Sale Prospectus and Prospectus, except such as has previously been obtained or waived and such as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions in connection with the offer and sale of the Securities.
| 5 |
(k) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than (A) proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, or (B) proceedings that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement, the Indenture or the Securities or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described in all material respects.
(m) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
| 6 |
(o) To the Company’s knowledge, the Company and its subsidiaries, taken as a whole, (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(q) (i) None of the Company or its subsidiaries or controlled affiliates, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or controlled affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Company and its subsidiaries and controlled affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (iii) neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
| 7 |
(r) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(s) (i) None of the Company, any of its subsidiaries, or any of their controlled affiliates is an individual or entity (“Person”) that is, is controlled by, or to the Company’s knowledge after due inquiry, is 10% or more owned by one or more Persons that are, and no director or officer of the Company or any of its subsidiaries and, to the Company’s knowledge, no employee, agent or representative of the Company or any of its subsidiaries, is:
(A) the target of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), or
(B) located, organized or resident in a country or territory that is the target of comprehensive Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Crimea, Cuba, Iran, North Korea and Syria (with respect to Syria, only until July 1, 2025)).
(ii) Unless authorized by applicable laws and regulations, or a license, license exception, or other governmental authorization, the Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
| 8 |
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the target of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) Since April 24, 2019, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not knowingly engage in, any unauthorized dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the target of Sanctions. The representations in this Section 1(s) shall not apply to, nor are they sought by or given to, any person if and to the extent that the expression of, or compliance with, or receipt or acceptance of, such representation would breach (i) any provision of Council Regulation (EC) No. 2271/96, as amended from time to time (the “EU Blocking Regulation”), or any law or regulation implementing the EU Blocking Regulation in any member state of the European Union or the United Kingdom or (ii) with regard to Deutsche Bank AG, London Branch, Section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes (Außenwirtschaftsverordnung – AWV)).
(t) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property (other than intellectual property, which is addressed exclusively in Section 1(u)) owned by them which is material to the business of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus or such as do not materially diminish the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries, taken as a whole; and any material real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and, to the Company’s knowledge, enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, taken as a whole, in each case except as described in the Time of Sale Prospectus.
| 9 |
(u) Except as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole: to the knowledge of the Company, the Company and its subsidiaries own or possess, or can acquire on reasonable terms, intellectual property rights in or to all patents, licenses, inventions, works of authorship, copyrights, copyrightable works, know- how (including trade secrets and other unpatented and/or unpatentable systems, procedures, and similar proprietary or confidential information), trademarks, service marks, trade names, domain names and other source indicators, mask works, and all other intellectual property, industrial property and similar proprietary rights anywhere in the world (including any of the foregoing as may be registered with an applicable governmental entity, and all goodwill associated with, any of the foregoing) (collectively, “Intellectual Property”) material to, or otherwise necessary for, the conduct of their respective businesses as now operated by them or as contemplated in the Time of Sale Prospectus to be operated by them; to the knowledge of the Company, all items of Intellectual Property owned by or exclusively licensed to the Company and its subsidiaries are valid, subsisting and (other than domain names, which are leased registrations, and applications for the registration of Intellectual Property which have not issued) enforceable; to the knowledge of the Company, the business of the Company and its subsidiaries as currently conducted does not infringe, misappropriate or otherwise violate the Intellectual Property of a third person anywhere in the world; to the knowledge of the Company, none of the Intellectual Property of the Company and its subsidiaries is being infringed, misappropriated or otherwise violated by any person; the Company and its subsidiaries have exercised ordinary business discretion with respect to their practices designed to maintain the confidentiality of confidential information and trade secrets of the Company that embody Intellectual Property owned by the Company, the value of which to the Company or any of its subsidiaries is contingent upon maintaining the confidentiality thereof, and to the knowledge of the Company, there is no currently pending or threatened action, suit, proceeding or claim by any person challenging the Company’s or any of its subsidiaries’ rights in or to any items of Intellectual Property that are owned by or exclusively licensed to them, challenging the validity, enforceability or scope of any Intellectual Property owned by or exclusively licensed to the Company or any of its subsidiaries, or alleging that the Company or any of its subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property of any third person.
(v) Except as disclosed in the Time of Sale Prospectus or would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, the Company and each of its subsidiaries have complied and are presently in compliance with all applicable privacy and data protection laws, judgments and orders binding on the Company or its subsidiaries, statutes, rules and regulations of any court or arbitrator or other governmental or regulatory authority, privacy policies, and other contractual or legal obligations, relating to the privacy and security of the information technology systems and personal data used in connection with the operation of the Company’s and its subsidiaries’ businesses. Except as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, the Company and each of its subsidiaries have taken reasonable steps, in accordance with industry standard practices, designed to protect the information technology systems and personal data of the Company used in connection with the operation of the Company’s and its subsidiaries’ businesses. Except as disclosed in the Time of Sale Prospectus or would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole, to the knowledge of the Company, there has been no security breach, compromise, misuse, misappropriation, or unauthorized use, access, disablement, or modification of or relating to any such information technology system or personal data and the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach, compromise, misuse, misappropriation, or unauthorized use, access, disablement, or modification of or relating to any such information technology system or personal data.
| 10 |
(w) No material labor dispute with the employees of the Company or any of its subsidiaries exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is imminent; and, except as described in the Time of Sale Prospectus, the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(x) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are, in the reasonable judgment of the Company, prudent and customary in the businesses in which they are engaged, taken as a whole; neither the Company nor any of its subsidiaries has been refused any material insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business except at a cost that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus.
(y) Neither the Company nor any of its Major Subsidiaries is (i) in violation of its certificate of incorporation or bylaws (or other applicable organization document), (ii) in violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Major Subsidiaries or any of their properties, or (iii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in (or, with the giving of notice or lapse of time, would be in default) (“Default”) under any indenture, mortgage, deed of trust, loan or credit agreement, note, contract, franchise, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, or to which any of the property or assets of the Company or any of its Major Subsidiaries is subject (each, an “Existing Instrument”), except, in the case of the foregoing clauses (ii) and (iii), for such Defaults as would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
| 11 |
(z) The Company and its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to obtain such certificates, authorizations or permits would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole, in each case except as described in the Time of Sale Prospectus.
(aa) Except as disclosed in the Time of Sale Prospectus, the Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole) and have paid all taxes required to be paid thereon (except for cases in which the failure to pay would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole, or, except as currently being contested in good faith and for which reserves required by U.S. generally accepted accounting principles (“GAAP”) have been created in the financial statements of the Company), and no unpaid tax deficiency has been determined adversely to the Company or any of its subsidiaries that has had a material adverse effect. Except as disclosed in the Time of Sale Prospectus, neither the Company nor any of its subsidiaries have received any written notice or have knowledge of any unpaid tax deficiency that is reasonably expected to be determined adversely to the Company or its subsidiaries and which would reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(bb) The consolidated financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and together with the related schedules and notes, present fairly in all material respects the financial position of the Company and its subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its subsidiaries for the periods specified. Such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein. The summary financial information included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus under the Securities Act or the rules and regulations promulgated thereunder. All disclosures contained in or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act in all material respects, to the extent applicable.
| 12 |
(cc) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries and delivered its report with respect to the audited consolidated financial statements and schedules filed with the Commission as part of the Registration Statement and included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an independent registered public accounting firm as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission and the Public Company Accounting Oversight Board (United States) thereunder.
(dd) The Company and its subsidiaries and their respective officers and directors are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder.
(ee) The Company and its subsidiaries maintain a system of internal accounting controls that is designed to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, each of the Time of Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as described in the Time of Sale Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting, as defined in Rule 13a-15(f) under the Exchange Act (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting.
| 13 |
(ff) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Company and its subsidiaries is made known to the Chief Executive Officer and Chief Financial Officer of the Company by others within the Company or any of its subsidiaries, and such disclosure controls and procedures are reasonably effective to perform the functions for which they were established subject to the limitations of any such control system; the Company’s auditors and the audit committee of the board of directors of the Company have been advised of: (i) any significant deficiencies or material weaknesses in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(gg) Any statistical and market-related data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus are based on or derived from sources that the Company reasonably believes to be reliable and accurate in all material respects and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(hh) The Company has not taken and will not take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(ii) Neither the Company nor any of its subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(jj) The Company and its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974 (as amended, “ERISA,” which term, as used herein, includes the regulations and published interpretations thereunder)) established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates are in compliance in all respects with ERISA, except for any failure to so comply which would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. No “employee benefit plan” established or maintained by the Company or its subsidiaries or any of their ERISA Affiliates (as defined below), if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA), except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. Neither the Company or its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Internal Revenue Code of 1986 (as amended, the “Code,” which term, as used herein, includes the regulations and published interpretations thereunder), except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. Each “employee benefit plan” established or maintained by the Company or its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401 of the Code is so qualified and nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification, except as would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole. “ERISA Affiliate” means, with respect to the Company or a subsidiary of the Company, any member of any group of organizations described in Section 414 of the Code of which the Company or such subsidiary is a member.
| 14 |
2. Agreements to Sell and Purchase. The Company hereby agrees to issue and sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amounts of Securities set forth in Schedule II hereto opposite its name at the purchase price (the “Purchase Price”) set forth in Schedule I hereto.
3. Terms of Public Offering. The Company is advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after the Registration Statement and this Agreement have become effective as in the judgment of the Representatives is advisable. The Company is further advised by the Representatives that the Securities are to be offered to the public upon the terms set forth in the Prospectus.
4. Payment and Delivery. Payment for the Securities shall be made to the Company on the date and time set forth in Schedule I hereto, or at such other time on the same or such other date, not later than the fifth “business day” thereafter, as shall be designated in writing by the Representatives. For purposes of this Agreement, “business day” shall mean any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, operates. The time and date of such payment are hereinafter referred to as the “Closing Date.” Delivery of certificates for the Securities through a common depositary (the “Common Depositary”) shall be made through the facilities of Euroclear Bank SA/NV (“Euroclear”) and Clearstream Banking S.A. (“Clearstream”) unless the Representatives shall otherwise instruct. The Company hereby acknowledges that circumstances under which the Representatives may provide notice to postpone the Closing Date as originally scheduled include, but are in no way limited to, a delay as contemplated by the provisions of Section 10 hereof.
| 15 |
The Securities shall be in global form and will initially be issued only in book-entry form and deposited with the Common Depositary for Euroclear and Clearstream. The Securities shall be registered in such denominations as the Representatives shall request in writing not later than one full business day prior to the Closing Date and held by the Common Depositary through its nominee for Euroclear and Clearstream, as the Representatives may request. The Securities shall be delivered to the Representatives on the Closing Date for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid, against payment of the Purchase Price therefor. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a condition to the obligations of the Underwriters.
Goldman Sachs & Co. LLC or such other Representative as the Underwriters may appoint to settle the Securities (the “Settlement Bank”) acknowledges that the Securities represented by the global notes will initially be credited to an account (the “Commissionaire Account”) for the benefit of the Settlement Bank the terms of which include a third-party beneficiary clause (‘stipulation pour autrui’) with the Company as the third-party beneficiary and provide that such Securities are to be delivered to others only against payment of the net subscription monies for the Securities (i.e. less the commissions and expenses to be deducted from the subscription monies) into the Commissionaire Account on a delivery against payment basis. The Settlement Bank acknowledges that (i) the Securities represented by the global security shall be held to the order of the Company as set out above and (ii) the net subscription monies for the Securities received in the Commissionaire Account (i.e. less the commissions and expenses deducted from the subscription monies) will be held on behalf of the Company until such time as they are transferred to the Company’s order. The Settlement Bank undertakes that the net subscription monies for the Securities (i.e. less the commissions and expenses deducted from the subscription monies) will be transferred to the Company’s order promptly following receipt of such monies in the Commissionaire Account. The Company acknowledges and accepts the benefit of the third-party beneficiary clause (‘stipulation pour autrui’) pursuant to the Belgian/Luxembourg Civil Code in respect of the Commissionaire Account.
| 16 |
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion of the following conditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(iii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company to the effect set forth in Sections 5(a) and 5(b).
(d) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Cooley LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and a negative assurance letter of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.
With respect to Section 5(d) above, Cooley LLP, and with respect to Section 5(e) above, Davis Polk & Wardwell LLP, may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus, the Prospectus and any amendments or supplements thereto, as applicable, and review and discussion of the contents thereof, but are without independent check or verification, except as specified.
| 17 |
(g) On the date hereof, the Representatives shall have received from PricewaterhouseCoopers LLP, the independent registered public accounting firm for the Company, a “comfort letter” dated the date hereof addressed to the Representatives, in form and substance satisfactory to the Representatives, covering the financial information in the Registration Statement and the Time of Sale Prospectus and other customary matters. In addition, on the Closing Date, the Representatives shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Representatives, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 business days prior to the Closing Date.
(h) The Underwriters shall have received, on each of the date hereof and the Closing Date, a certificate signed by the Chief Financial Officer of the Company, dated respectively as of the date hereof or as of the Closing Date, substantially in the form agreed with the Representatives.
(i) The Company shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received executed copies thereof.
(j) On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 6(i), 8 and 11 hereof shall at all times be effective and shall survive such termination.
| 18 |
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to the Representatives, upon request, without charge, two signed copies of the Registration Statement (including exhibits thereto) (which may be an electronic facsimile) and for delivery to each Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to the Representatives, without charge, as promptly as practicable following the Time of Sale and in any event not later than the second business day following the date hereof and during the period mentioned in Section 6(e) or 6(f), as many copies of the Time of Sale Prospectus, the Prospectus, and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the judgment of the Representatives or counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances under which they are made, when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
| 19 |
(f) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Securities may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) (i) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and (ii) to advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, to use its best efforts to obtain the withdrawal thereof at the earliest possible moment. Notwithstanding the foregoing, the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation.
(h) To make generally available (which may be satisfied by filing with the Commission on its Electronic Data Gathering Analysis and Retrieval System) to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
| 20 |
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants and other advisors in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities (within the time required by Rule 456(b)(1), if applicable), this Agreement, the Indenture and the Securities, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) any fees charged by rating agencies for the rating of the Securities, (iv) the fees and expenses, if any, incurred in connection with the admission of the Securities for trading any appropriate market system; (v) the cost of the preparation, issuance and delivery of the Securities, (vi) the costs and charges of any trustee, transfer agent, registrar or depositary, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, and travel and lodging expenses of the representatives and officers of the Company and any such consultants, (viii) the document production charges and expenses associated with printing this Agreement, (ix) all expenses and listing fees in connection with the application for the listing of the Securities on the New York Stock Exchange (“NYSE”), and the admission of the Securities for trading on the NYSE, (x) all fees and expenses (including fees and expenses of counsel) of the Company in connection with the approval of the Securities by Euroclear and Clearstream for “book-entry” transfer, and (xi) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 and Section 11, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make and all travel and lodging expenses of the Underwriters or any of their employees incurred by them in connection with participation in investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities.
(j) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary use its reasonable best efforts to file a new shelf registration statement. The Company shall take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement declared effective by the Commission.
| 21 |
(k) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company and having a maturity of more than one year from the date of issue substantially similar to the Securities (other than (i) the Securities, (ii) commercial paper issued in the ordinary course of business or (iii) securities permitted with the prior written consent of the Representatives identified in Schedule I with the authorization to release this lock-up on behalf of the Underwriters).
(l) To prepare a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by the Representatives, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Securities.
(m) Not to take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Securities contemplated hereby.
(n) To apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Time of Sale Prospectus and the Prospectus.
(o) The Company will use commercially reasonable efforts to cause the Securities to be listed for trading on the NYSE within 30 days after the Closing Date.
(p) The Company will use its commercially reasonable efforts to cause and maintain the eligibility of the Securities to be eligible for clearance and settlement through Euroclear and Clearstream.
(q) Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the Underwriters and the Company, the Company acknowledges, accepts, and agrees that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority and acknowledges, accepts, and agrees to be bound by:
(i) The effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the Underwriters to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
| 22 |
(A) The reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(B) The conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the Underwriters or another person (and the issue to or conferral on the Company of such shares, securities or obligations);
(C) The cancellation of the BRRD Liability;
(D) The amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(ii) The variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority; and
(iii) As used in this Section 6(q), “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; “Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation; “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499; “BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised; and “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the relevant Underwriter.
(r) Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the Underwriters and the Company, the Company acknowledges and accepts that a UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by:
| 23 |
(i) The effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-In Liability of the Underwriters to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(A) The reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(B) The conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the Underwriters or another person, and the issue to or conferral on the Company of such shares, securities or obligations;
(C) The cancellation of the UK Bail-in Liability;
(D) The amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(ii) The variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in Powers by the relevant UK resolution authority; and
(iii) As used in this Section 6(r), “UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings); “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised; “UK Bail-in Powers” means the powers under the UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
| 24 |
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) of the Securities Act a free writing prospectus prepared by, on behalf of or used by such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of each Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action, claim, suit, investigation or proceeding as such expenses are incurred), whether or not pending or threatened and whether or not brought by an Underwriter or any of its affiliates, or by a security holder, creditor or other person that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; except, in the case of each (i) and (ii), insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission made in reliance on and in conformity with information relating to any Underwriter furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto. The Company hereby acknowledges that the only information that the Underwriters through the Representatives have furnished to the Company expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or any amendment or supplement thereto are the concession and reallowance figures appearing in the third paragraph; the information relating to making a market in the Securities in the eighth paragraph; and the information relating to stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty bids contained in the ninth paragraph, in each case under the caption “Underwriting” in the preliminary prospectus and the Prospectus (the “Underwriter Information”). The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to the Underwriter Information. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
| 25 |
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing; provided, however, that the failure to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party under this Section 8 except to the extent that it has been materially prejudiced by such failure (through the forfeiture of substantive rights and defenses) and shall not relieve the indemnifying party from any liability that the indemnifying party may have to an indemnified party other than under this Section 8. If any such proceeding shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof: (1) in the case of a civil proceeding (excluding any governmental, regulatory or non-civil proceeding provided for in clause (2)), the indemnifying party shall be entitled to participate in such civil proceeding and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party and shall pay the reasonably incurred and documented fees and expenses of such counsel related to such civil proceeding, and, after notice from the indemnifying party to such indemnified party of its election to assume the defense of such civil proceeding, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal fees and expenses of other counsel or any other expenses, in each case, subsequently incurred by such indemnified party in connection with the defense thereof, other than reasonably incurred and documented costs of investigation; and (2) in case of any governmental, regulatory or non-civil proceeding, upon request of the indemnified party, the indemnifying party shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party in such governmental, regulatory or non-civil proceeding and shall pay the reasonably incurred and documented fees and expenses of such counsel related to such governmental, regulatory or non-civil proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnified party, or (iv) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives authorized to appoint counsel under this Section set forth in Schedule I hereto, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any indemnified party.
| 26 |
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters bear to the aggregate initial public offering price of the Securities as set forth in the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective principal amounts of Securities they have purchased hereunder as set forth opposite their names in Schedule II hereto, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to Section 8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
| 27 |
(f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. The Underwriters may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE American, the NASDAQ Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States, the United Kingdom or the European Union shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by U.S. Federal, New York State, United Kingdom or European Union authorities, (v) there shall have occurred a material disruption in securities settlement or clearance services in the United States or with respect to the Euroclear or Clearstream systems, or (vi) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the judgment of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (vi), makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
| 28 |
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule II bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Securities to be purchased on such date, and arrangements satisfactory to the non-defaulting Underwriters and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company except that the provisions of Sections 6(i), 8 and 11 hereof shall at all times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
11. Reimbursement of the Expenses of the Underwriters. If this Agreement shall be terminated by the Representatives pursuant to Section 9 or because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement (other than by reason of a default by the Underwriters or the occurrence of any of the events described in clauses (ii) (to the extent such event is not caused by any act or omission by the Company), (iii), (iv) or (v) of Section 9), the Company will reimburse the Underwriters, severally, upon demand for all out of pocket expenses (including the reasonable and documented fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
| 29 |
12. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Securities, represents the entire agreement between the Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Securities.
(b) This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
(c) The Company acknowledges that in connection with the offering of the Securities: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those of the Company and (iv) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.
13. Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
| 30 |
For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopier, facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart thereof.
15. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred to in Section 8 hereof, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any other purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.
16. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
17. Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
18. Applicable Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
(a) Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceeding”) may be instituted in the federal courts of the United States of America located in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding, as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
| 31 |
19. Judgment Currency. The Company agrees to indemnify each Underwriter against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “Judgment Currency”) other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Underwriter is able to purchase United States dollars on the business day following actual receipt by such Underwriter of any sum adjudged or ordered to be so due in the Judgment Currency with the amount of the Judgment Currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with purchase of, or conversion into, the relevant currency.
20. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
21. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives at the address set forth in Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set forth in Schedule I hereto.
22. USA PATRIOT Act. In accordance with the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and addresses of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
23. Agreement Among Managers. The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Markets Association Agreement Among Managers Version 1/New York Law Schedule (the “Agreement Among Managers”) as amended in the manner set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters, “Lead Manager” means the Representatives, “Settlement Lead Manager” means Goldman Sachs & Co. LLC, “Stabilizing Manager” means Goldman Sachs & Co. LLC, and “Subscription Agreement” means this Agreement. Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 10 of this Agreement. Notwithstanding anything contained in the Agreement Among Managers, each Underwriter hereby agrees that the Settlement Lead Manager may allocate such Underwriter’s pro rata share of expenses incurred by the Underwriters in connection with the offering of the Securities to the account of such Underwriter for settlement of accounts (including payment of such Underwriter’s fees by the Settlement Lead Manager) as soon as practicable but in any case no later than 90 days following the Closing Date.
| 32 |
24. Stabilizing Manager. The Company confirms the appointment of the Stabilizing Manager as of the central point responsible for adequate public disclosure of information, and handling any request from a competent authority, in accordance with Article 6(5) of Commission Delegated Regulation (EU) 2016/1052 of 8 March 2016 with regard to regulatory technical standards for the conditions applicable to buy-back programmes and stabilization measures, including such regulation as it forms part of United Kingdom domestic law by virtue of the European Union (Withdrawal) Act 2018, as amended (the “EUWA”). The Stabilizing Manager for its own account may, to the extent permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Company and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Company to issue in excess of €4,500,000,000 in aggregate principal amount of the Securities. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and directives.
25. EU MiFID/UK MiFIR Product Governance Rules. (a) Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593 (the “MiFID II Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the MiFID II Product Governance Rules: (i) Goldman Sachs & Co. LLC and Deutsche Bank AG, London Branch (each, an “EU Manufacturer”) acknowledge to each other EU Manufacturer that they understand the responsibilities conferred upon them under the MiFID II Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Disclosure Package, the Final Prospectus and any announcements in connection with the Securities; and (ii) the Underwriters (other than the EU Manufacturers) and the Company each note the application of the MiFID II Product Governance Rules and each acknowledge the target market and distribution channels identified as applying to the Securities by the EU Manufacturers and the related information set out in the Disclosure Package, the Final Prospectus and any announcements in connection with the Securities.
26. Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules: (i) Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, Deutsche Bank AG, London Branch, Merrill Lynch International and BNP PARIBAS (each a “UK Manufacturer” and together the “UK Manufacturers”) acknowledge to each other UK Manufacturer that they understand the responsibilities conferred upon them under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Disclosure Package, the Final Prospectus and any announcements in connection with the Securities; and (ii) the Underwriters (other than the UK Manufacturers) and the Company each note the application of the UK MiFIR Product Governance Rules and each acknowledge the target market and distribution channels identified as applying to the Securities by the UK Manufacturers and the related information set out in the Disclosure Package, the Final Prospectus and any announcements in connection with the Securities.
[Signature Pages Follow]
| 33 |
| Very truly yours, UBER TECHNOLOGIES, INC. | ||
| By: | /s/ Balaji Krishnamurthy | |
| Name: Balaji Krishnamurthy | ||
| Title: Chief Financial Officer | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
| GOLDMAN SACHS & CO. LLC | ||
By: |
/s/ Taylor D. Joss |
|
| Name: Taylor D. Joss | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
| MORGAN
STANLEY & CO. INTERNATIONAL PLC |
||
By: |
/s/ Kathryn McArdle |
|
| Name: Kathryn McArdle | ||
| Title: Executive Director | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
DEUTSCHE BANK AG, LONDON BRANCH |
||
By: |
/s/ Ritu Ketkar |
|
| Name: Ritu Ketkar | ||
| Title: Managing Director | ||
DEUTSCHE BANK AG, LONDON BRANCH |
||
|
By: |
/s/ Kevin Prior |
|
| Name: Kevin Prior | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement is hereby confirmed and accepted as of the date first written above.
| MERRILL LYNCH INTERNATIONAL | ||
By: |
/s/ Angus Reynolds |
|
| Name: Angus Reynolds | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
BNP PARIBAS |
||
|
By: |
/s/ Rafael Ribeiro |
|
| Name: Rafael Ribeiro | ||
| Title: Managing Director | ||
BNP PARIBAS |
||
By: |
/s/ Pasquale A. Perraglia IV |
|
| Name: Pasquale A. Perraglia IV | ||
| Title: Managing Director | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
CITIGROUP GLOBAL MARKETS LIMITED |
||
By: |
/s/ Paula Clarke |
|
| Name: Paula Clarke | ||
| Title: Delegated Signatory | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
HSBC BANK PLC |
|
/s/ Samantha Riley |
|
| Name: Samantha Riley | |
| Title: Head of DCM Legal |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
J.P. MORGAN SECURITIES PLC |
|
/s/ Robert Chambers |
|
| Name: Robert Chambers | |
| Title: Managing Director |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
UBS AG LONDON BRANCH |
||
By: |
/s/ Olivia Singh |
|
| Name: Olivia Singh | ||
| Title: Executive Director | ||
UBS AG LONDON BRANCH |
||
By: |
/s/ Perry Ward |
|
| Name: Perry Ward | ||
| Title: Director | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
BANCO SANTANDER, S.A. |
|
/s/ Alexis Rohr |
|
| Name: Alexis Rohr | |
| Title: DCM VP |
BANCO SANTANDER, S.A. |
|
/s/ Matthias d’Haene |
|
| Name: Matthias d’Haene | |
| Title: DCM Executive Director |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
| MIZUHO INTERNATIONAL PLC | |
/s/ Manabu Shibuya |
|
| Name: Manabu Shibuya | |
| Title: Authorised Signatory |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
RBC EUROPE LIMITED |
|
/s/ Elaine S. Murray |
|
| Name: Elaine S. Murray | |
| Title: Duly Authorised Signatory |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
TD
GLOBAL FINANCE |
|
/s/ Frances Watson |
|
| Name: Frances Watson | |
| Title: Managing Director |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
PNC CAPITAL MARKETS LLC |
|
/s/ Mitchell O’Shell |
|
| Name: Mitchell O’Shell | |
| Title: Senior Associate |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
WELLS FARGO SECURITIES INTERNATIONAL LIMITED |
|
/s/ Bradley Cooper |
|
| Name: Bradley Cooper | |
| Title: Executive Director |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
ACADEMY SECURITIES, INC. |
|
/s/ Anthony Johnson |
|
| Name: Anthony Johnson | |
| Title: Compliance Analyst |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
||
By: |
/s/ Gonzalo Cid-Luna |
|
| Name: Gonzalo Cid-Luna | ||
| Title: ED | ||
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
||
By: |
/s/ Alvaro Solis |
|
| Name: Alvaro Solis | ||
| Title: MD | ||
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
| MUFG SECURITIES EMEA PLC | |
/s/ Trevor Kemp |
|
| Name: Trevor Kemp | |
| Title: Authorised Signatory |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
U.S. BANCORP INVESTMENTS, INC. |
|
/s/ Emily Hartley |
|
| Name: Emily Hartley | |
| Title: Managing Director |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
AMERIVET SECURITIES, INC. |
|
|
/s/ Florian Jaze |
|
| Name: Florian Jaze | |
| Title: Chief Financial Officer |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
BLAYLOCK VAN, LLC |
|
/s/ Eric Standifer |
|
| Name: Eric Standifer | |
| Title: CEO |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
C.L. KING & ASSOCIATES, INC. |
|
/s/ William Halpin |
|
| Name: William Halpin | |
| Title: Vice President |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
DREXEL HAMILTON, LLC |
|
/s/ Anthony Felice |
|
| Name: Anthony Felice | |
| Title: Managing Partner |
[Signature Page to Underwriting Agreement (EUR)]
The Agreement
is hereby confirmed and accepted as of the date first written above.
STERN BROTHERS & CO. |
|
/s/ Kit Turner |
|
| Name: Kit Turner | |
| Title: Managing Director |
[Signature Page to Underwriting Agreement (EUR)]
Schedule I
| Representatives: | |
| Representative authorized to release lock-up under Section 6(k): | Goldman Sachs & Co. LLC Morgan Stanley & Co. International plc Deutsche Bank AG, London Branch Merrill Lynch International BNP PARIBAS
|
Representative authorized to appoint counsel under Section 8(c):
|
Goldman Sachs & Co. LLC Morgan Stanley & Co. International plc Deutsche Bank AG, London Branch Merrill Lynch International BNP PARIBAS
|
| Indenture: | Indenture dated as of September 9, 2024 between the Company and the Trustee, as supplemented by the Third Supplemental Indenture to be dated as of September 15, 2026 between the Company and the Trustee |
| Trustee: | U.S. Bank Trust Company, National Association |
| Common Depositary: | U.S. Bank Europe DAC |
| Registration Statement File No.: | 333-293483 |
| Time of Sale Prospectus | 1. Basic Prospectus dated February 13, 2026 relating to the Shelf Securities 2. Preliminary Prospectus Supplement dated September 7, 2026 relating to the Securities 3. Pricing Term Sheet dated September 9, 2026 setting forth the terms of the Securities |
| Securities to be purchased: | 3.750% Senior Notes due 2029 (the “2029 Notes”) 4.125% Senior Notes due 2032 (the “2032 Notes”) 4.375% Senior Notes due 2034 (the “2034 Notes”) 4.750% Senior Notes due 2038 (the “2038 Notes”) 5.250% Senior Notes due 2046 (the “2046 Notes”)
|
| Aggregate Principal Amount: | €750,000,000 of the 2029 Notes €1,000,000,000 of the 2032 Notes €1,000,000,000 of the 2034 Notes €1,000,000,000 of the 2038 Notes €750,000,000 of the 2046 Notes
|
| I-1 |
| Purchase Price: | 99.589% of the principal amount of the 2029 Notes, plus accrued interest, if any, from September 15, 2026 99.245% of the principal amount of the 2032 Notes, plus accrued interest, if any, from September 15, 2026 99.197% of the principal amount of the 2034 Notes, plus accrued interest, if any, from September 15, 2026 99.256% of the principal amount of the 2038 Notes, plus accrued interest, if any, from September 15, 2026 98.738% of the principal amount of the 2046 Notes, plus accrued interest, if any, from September 15, 2026
|
| Maturity: | 2029 Notes: September 15, 2029 2032 Notes: September 15, 2032 2034 Notes: September 15, 2034 2038 Notes: September 15, 2038 2046 Notes: September 15, 2046
|
| Interest Rate: | 2029 Notes: 3.750% per annum, accruing from September 15, 2026 2032 Notes: 4.125% per annum, accruing from September 15, 2026 2034 Notes: 4.375% per annum, accruing from September 15, 2026 2038 Notes: 4.750% per annum, accruing from September 15, 2026 2046 Notes: 5.250% per annum, accruing from September 15, 2026 |
| Interest Payment Date: | Annually in arrears on September 15 of each year, beginning on September 15, 2027
|
| Interest Payment Record Date: | The close of business on the date that is the Clearing System Business Day immediately preceding each Interest Payment Date. A Clearing System Business Day is every Monday to Friday inclusive, except December 25th and January 1st. |
| Closing Date and Time: | September 15, 2026, 10:00 a.m. (Central European Time (CET)) |
| I-2 |
| Address for Notices to Representatives: | Goldman Sachs & Co. LLC 200 West Street New York, New York 10282 Attention: Registration Department Facsimile: (212) 902-9316 Email: registration-syndops@ny.email.gs.com
Morgan Stanley & Co. International plc 25 Cabot Square, Canary Wharf London E14 4QA United Kingdom Attention: Head of Transaction Management Group, Global Capital Markets Telephone: +44 20 7677 0582 Facsimile: +44 20 7056 4984
Deutsche Bank AG, London Branch 21 Moorfields London EC2Y 9DB United Kingdom Attention: DCM Debt Syndicate Telephone: +44 207 545 4361
Merrill Lynch International 2 King Edward Street London EC1A 1HQ United Kingdom Attention: Syndicate Desk Telephone: +44 (0)20 7995 3966 Email: dcm_london@bofa.com
BNP PARIBAS 16, boulevard des Italiens 75009 Paris France Attention: Fixed Income Syndicate Email: dl.syndsupportbonds@uk.bnpparibas.com
|
| Address for Notices to the Company: | Uber Technologies, Inc. 1725 3rd Street San Francisco, California 94158 Attention: Chief Legal Officer |
| I-3 |
Schedule II
| Underwriter | Principal Amount of 2029 Notes To Be Purchased | Principal Amount of 2032 Notes To Be Purchased | Principal Amount of 2034 Notes To Be Purchased | Principal Amount of 2038 Notes To Be Purchased | Principal Amount of 2046 Notes To Be Purchased | |||||||||||||||
| Goldman Sachs & Co. LLC | € | 116,250,000 | € | 155,000,000 | € | 155,000,000 | € | 155,000,000 | € | 116,250,000 | ||||||||||
| Morgan Stanley & Co. International plc | € | 75,000,000 | € | 100,000,000 | € | 100,000,000 | € | 100,000,000 | € | 75,000,000 | ||||||||||
| Deutsche Bank AG, London Branch | € | 65,625,000 | € | 87,500,000 | € | 87,500,000 | € | 87,500,000 | € | 65,625,000 | ||||||||||
| Merrill Lynch International | € | 65,625,000 | € | 87,500,000 | € | 87,500,000 | € | 87,500,000 | € | 65,625,000 | ||||||||||
| BNP PARIBAS | € | 52,500,000 | € | 70,000,000 | € | 70,000,000 | € | 70,000,000 | € | 52,500,000 | ||||||||||
| Citigroup Global Markets Limited | € | 45,000,000 | € | 60,000,000 | € | 60,000,000 | € | 60,000,000 | € | 45,000,000 | ||||||||||
| HSBC Bank plc | € | 45,000,000 | € | 60,000,000 | € | 60,000,000 | € | 60,000,000 | € | 45,000,000 | ||||||||||
| J.P. Morgan Securities plc | € | 45,000,000 | € | 60,000,000 | € | 60,000,000 | € | 60,000,000 | € | 45,000,000 | ||||||||||
| UBS AG London Branch | € | 45,000,000 | € | 60,000,000 | € | 60,000,000 | € | 60,000,000 | € | 45,000,000 | ||||||||||
| Banco Santander, S.A. | € | 30,000,000 | € | 40,000,000 | € | 40,000,000 | € | 40,000,000 | € | 30,000,000 | ||||||||||
| Mizuho International plc | € | 30,000,000 | € | 40,000,000 | € | 40,000,000 | € | 40,000,000 | € | 30,000,000 | ||||||||||
| RBC Europe Limited | € | 30,000,000 | € | 40,000,000 | € | 40,000,000 | € | 40,000,000 | € | 30,000,000 | ||||||||||
| TD Global Finance unlimited company | € | 30,000,000 | € | 40,000,000 | € | 40,000,000 | € | 40,000,000 | € | 30,000,000 | ||||||||||
| PNC Capital Markets LLC | € | 18,750,000 | € | 25,000,000 | € | 25,000,000 | € | 25,000,000 | € | 18,750,000 | ||||||||||
| Wells Fargo Securities International Limited | € | 18,750,000 | € | 25,000,000 | € | 25,000,000 | € | 25,000,000 | € | 18,750,000 | ||||||||||
| Academy Securities, Inc. | € | 7,500,000 | € | 10,000,000 | € | 10,000,000 | € | 10,000,000 | € | 7,500,000 | ||||||||||
| Banco Bilbao Vizcaya Argentaria, S.A. | € | 7,500,000 | € | 10,000,000 | € | 10,000,000 | € | 10,000,000 | € | 7,500,000 | ||||||||||
| MUFG Securities EMEA plc | € | 7,500,000 | € | 10,000,000 | € | 10,000,000 | € | 10,000,000 | € | 7,500,000 | ||||||||||
| U.S. Bancorp Investments, Inc. | € | 7,500,000 | € | 10,000,000 | € | 10,000,000 | € | 10,000,000 | € | 7,500,000 | ||||||||||
| AmeriVet Securities, Inc. | € | 1,500,000 | € | 2,000,000 | € | 2,000,000 | € | 2,000,000 | € | 1,500,000 | ||||||||||
| Blaylock Van, LLC | € | 1,500,000 | € | 2,000,000 | € | 2,000,000 | € | 2,000,000 | € | 1,500,000 | ||||||||||
| C.L. King & Associates, Inc. | € | 1,500,000 | € | 2,000,000 | € | 2,000,000 | € | 2,000,000 | € | 1,500,000 | ||||||||||
| Drexel Hamilton, LLC | € | 1,500,000 | € | 2,000,000 | € | 2,000,000 | € | 2,000,000 | € | 1,500,000 | ||||||||||
| Stern Brothers & Co. | € | 1,500,000 | € | 2,000,000 | € | 2,000,000 | € | 2,000,000 | € | 1,500,000 | ||||||||||
| Total | € | 750,000,000 | € | 1,000,000,000 | € | 1,000,000,000 | € | 1,000,000,000 | € | 750,000,000 | ||||||||||
| II-1 |
Exhibit 4.1
UBER TECHNOLOGIES, INC.,
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of September 15, 2026
3.750% SENIOR NOTES DUE 2029
4.125% SENIOR NOTES DUE 2032
4.375% SENIOR NOTES DUE 2034
4.750% SENIOR NOTES DUE 2038
5.250% SENIOR NOTES DUE 2046
TABLE OF CONTENTS
-i-
TABLE OF CONTENTS
(continued)
-ii-
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of September 15, 2026, by and between Uber Technologies, Inc., a Delaware corporation (the “Company”), and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”).
Recitals:
Whereas, the Company and the Trustee executed and delivered an Indenture, dated as of September 9, 2024 (the “Base Indenture” and, as supplemented by this Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time of debt securities to be issued in one or more series as provided in the Base Indenture;
Whereas, pursuant to a Board Resolution, the Company has authorized the issuance of €750,000,000 principal amount of 3.750% Senior Notes due 2029 (the “2029 Notes”), €1,000,000,000 principal amount of 4.125% Senior Notes due 2032 (the “2032 Notes”), €1,000,000,000 principal amount of 4.375% Senior Notes due 2034 (the “2034 Notes”), €1,000,000,000 principal amount of 4.750% Senior Notes due 2038 (the “2038 Notes”) and €750,000,000 principal amount of 5.250% Senior Notes due 2046 (the “2046 Notes,” and, together with the 2029 Notes, the 2032 Notes, the 2034 Notes and the 2038 Notes, the “Notes”);
Whereas, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Base Indenture without the consent of the holders;
Whereas, in accordance with Section 9.01(g) of the Base Indenture, the Company desires to enter into this Supplemental Indenture to establish the terms of the Notes in accordance with Section 2.01 of the Base Indenture and to establish the form of the Notes in accordance with Section 2.02 of the Base Indenture;
Whereas, all things necessary to make this Supplemental Indenture a valid and legally binding agreement according to its terms have been done; and
Now, Therefore, for and in consideration of the foregoing premises, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:
DEFINITIONS
Section 1.01 Definitions of Terms.
The terms defined in this Section 1.01 have the respective meanings specified in this Section 1.01 for all purposes of this Supplemental Indenture and of any indenture supplemental hereto (except as herein or therein otherwise expressly provided or unless the context of this Supplemental Indenture or such indenture supplemental hereto otherwise requires), and all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base Indenture.
“Actual/Actual (ICMA)” means the payment convention defined as such in the rulebook of the International Capital Market Association.
“Agency Agreement” means that certain agency agreement, dated as of the date hereof, among the Company, the Paying Agent, the Trustee, and U.S. Bank Trust Company, National Association, as Registrar and Transfer Agent.
1
“Aggregate Debt” means the sum of the following as of the date of determination: (1) the then outstanding aggregate principal amount of Indebtedness of the Company and its Restricted Subsidiaries, without duplication, incurred after the Issue Date and secured by Liens incurred in reliance on clause (12) of the definition of Permitted Liens, and (2) the then existing Attributable Liens of the Company and its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions, without duplication, entered into after the Issue Date in reliance on clause (12) of the definition of Permitted Liens; provided that any such Attributable Liens will be excluded from this clause (2) to the extent that the Indebtedness relating thereto is included in clause (1) of this definition; provided, further, that in no event will the amount of any Indebtedness (including Guarantees of such Indebtedness) be required to be included in the calculation of Aggregate Debt more than once despite the fact more than one Person is liable with respect to such Indebtedness and despite the fact such Indebtedness is secured by the assets of more than one Person (for example, and for avoidance of doubt, in the case where more than one Person has Guaranteed or otherwise become liable for such Indebtedness or in the case where there are Liens on assets of one or more of the Company and its Restricted Subsidiaries securing such Indebtedness or one or more Guarantees thereof, the amount of Indebtedness so Guaranteed or secured shall only be included once in the calculation of Aggregate Debt).
“Attributable Liens” means, in connection with a Sale and Lease-Back Transaction, the lesser of (1) the fair market value of the assets subject to such transactions as determined in good faith by an Officer of the Company, and (2) the present value (discounted at a rate of interest per annum implicit in the terms of such lease) of the obligations of the lessee for rental payments during the shorter of the term of the related lease or the period through the first date on which the Company may terminate the lease.
“Business Day” means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates.
“Capital Stock” means, with respect to any Person, any and all shares of stock of a corporation, partnership interests or other equivalent interests (however designated, whether voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the profits and losses, and a distribution of assets, after liabilities, of such Person.
“Change of Control” means:
(1) the Company becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) that any “person” (as such term is used in Section 13(d)(3) of the Exchange Act) has become the “beneficial owner” (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the Company’s Voting Stock; provided, however, that for purposes of this clause (1) such person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time, directly or indirectly; and provided, further, that a transaction will not be deemed to involve a Change of Control under this clause (1) if (a) the Company becomes a direct or indirect wholly owned subsidiary of another Person, and (b) (i) the direct or indirect holders of the Voting Stock of such Person immediately following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction, or (ii) immediately following that transaction no “person” (other than a Person satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such Person; or
2
(2) the Company sells, conveys, transfers or leases (either in one transaction or a series of related transactions) all or substantially all assets of the Company and its Subsidiaries taken as a whole to, or merges or consolidates with, a Person (other than the Company or any of its Subsidiaries), other than any such merger or consolidation where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person or parent entity thereof immediately after giving effect to such transaction.
“Change of Control Triggering Event” means the occurrence of a Change of Control that is accompanied or followed by a downgrade of the Company’s Debt Ratings within the Ratings Decline Period for such Change of Control by two of the three Rating Agencies to a level that is lower than an Investment Grade Rating by such Rating Agencies; provided that a Change of Control Triggering Event will not be deemed to have occurred in respect of a particular Change of Control if one of the applicable Rating Agencies making the reduction in rating does not publicly announce or confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control.
“Clearstream” means Clearstream Banking, S.A., a société anonyme, or any successor securities clearing agency.
“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, the German government bond (Bundesanleihe) selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of euro-denominated corporate debt securities of a comparable maturity to the remaining term of such Notes.
“Comparable Government Bond Price” means, with respect to any redemption date, (1) the arithmetic average of the Reference Government Bond Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Government Bond Dealer Quotations, or (2) if the Company obtains fewer than four such Reference Government Bond Dealer Quotations, the arithmetic average of all such quotations.
“Comparable Government Bond Rate” means, with respect to any redemption date, the rate per annum equal to the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, calculated in accordance with customary financial practice in pricing new issues of comparable corporate debt securities paying interest on an annual basis (ACTUAL/ACTUAL (ICMA)) of the Comparable Government Bond, assuming a price for the Comparable Government Bond (expressed as a percentage of its principal amount) equal to the Comparable Government Bond Price for such redemption date.
“Consolidated Total Assets” means, as of the date of any determination thereof, total assets of the Company and its Subsidiaries calculated in accordance with GAAP on a consolidated basis as of such date.
“Debt Rating” means, as of the date of determination, with respect to any Rating Agency, the rating as determined by such Rating Agency of the Company’s non-credit enhanced, senior unsecured long-term debt.
“Depositary” means U.S. Bank Europe DAC, as common depositary for Euroclear and Clearstream, or any successor.
“dollar” and “$” mean the lawful currency of the United States of America.
3
“euro” and “€” mean the single currency introduced at the third stage of the European Economic and Monetary Union pursuant to the Treaty on the Functioning of the European Union, as amended from time to time.
“Euroclear” means Euroclear Bank SA/NV, or any successor securities clearing agency.
“Finance Lease” means, as applied to any Person, any lease of any property, whether real, personal or mixed, of such Person as lessee is required to be classified and accounted for as a finance lease in accordance with GAAP.
“Financial Officer” means any of the chief financial officer, principal accounting officer, vice president of finance, treasurer or corporate controller or most senior financial officer of the Company.
“Fitch” means Fitch, Inc. or any successor to the rating agency business thereof.
“GAAP” means generally accepted accounting principles in the United States set forth in the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession in the United States, which are in effect as of the date of determination; provided that, except as otherwise specifically provided, all calculations made for purposes of determining compliance with the terms of the provisions of the indenture shall utilize GAAP as in effect on the Issue Date.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” means a guarantee other than by endorsement of negotiable instruments for collection or deposit in the ordinary course of business, direct or indirect, in any manner including, without limitation, through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness; provided that the term Guarantee shall not include customary indemnification obligations entered into in connection with any acquisition or disposition of assets or of other entities (other than to the extent that the primary obligations that are the subject of such indemnification obligation would be considered Indebtedness under the indenture). When used as a verb, “Guarantee” shall have a corresponding meaning. The amount of Indebtedness of another Person Guaranteed by the specified Person or one or more of such Persons as of any date shall be equal to the lesser of: (1) the principal amount of such Indebtedness of such other Person; and (2) the maximum principal amount of such Indebtedness payable under the Guarantee or Guarantees (without duplication in the case of one or more Guarantees of the same Indebtedness by Subsidiaries).
“Holder” means the Person in whose name a Note is registered in the books of the Registrar for the Notes.
“Indebtedness” of any specified Person means any obligation for borrowed money. For the avoidance of doubt, Indebtedness with respect to any Person only includes indebtedness for the repayment of money provided to such Person, and does not include any other kind of indebtedness or obligation notwithstanding that such other indebtedness or obligation may be evidenced by a note, bond, debenture or other similar instrument, may be in the nature of a financing transaction, or may be an obligation that under GAAP is classified as “debt” or another type of liability, whether required to be reflected on the balance sheet of such Person or otherwise.
4
Notwithstanding the foregoing, Indebtedness shall not include third party obligations included in the Company’s financial statements as a result of variable interest entity accounting or any Indebtedness among the Company and its Restricted Subsidiaries.
“Independent Investment Banker” means one of the Reference Government Bond Dealers selected by the Company.
“Investment Grade Rating” means (1) with respect to Moody’s, a rating equal to or higher than Baa3 (or the equivalent under a successor rating category of Moody’s), (2) with respect to S&P, a rating equal to or higher than BBB- (or the equivalent under any successor rating category of S&P), and (3) with respect to Fitch, a rating equal to or higher than BBB- (or the equivalent under any successor rating category of Fitch).
“Issue Date” means September 15, 2026.
“Lien” means any lien, security interest, mortgage, charge or similar encumbrance; provided, however, that in no event shall an operating lease or a nonexclusive license be deemed to constitute a Lien.
“Maturity Date” means (1) with respect to the 2029 Notes, September 15, 2029, (2) with respect to the 2032 Notes, September 15, 2032, (3) with respect to the 2034 Notes, September 15, 2034, (4) with respect to the 2038 Notes, September 15, 2038 and (5) with respect to the 2046 Notes, September 15, 2046.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Optional Redemption Date” when used with respect to any Note to be redeemed at the Company’s option, means the date fixed for such redemption by or pursuant to Section 3.02 of this Supplemental Indenture.
“Par Call Date” means (1) with respect to the 2029 Notes, August 15, 2029 (one month prior to the Maturity Date of the 2029 Notes); (2) with respect to the 2032 Notes, July 15, 2032 (two months prior to the Maturity Date of the 2032 Notes); (3) with respect to the 2034 Notes, June 15, 2034 (three months prior to the Maturity Date of the 2034 Notes); (4) with respect to the 2038 Notes, June 15, 2038 (three months prior to the Maturity Date of the 2038 Notes); and (5) with respect to the 2046 Notes, March 15, 2046 (six months prior to the Maturity Date of the 2046 Notes).
“Paying Agent” has the meaning provided in Section 2.04 hereof.
“Permitted Liens” means:
(1) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such assets, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;
(2) (a) Liens given to secure the payment of the purchase price or other acquisition, installation or construction costs incurred in connection with the acquisition (including acquisition through merger or consolidation) of any Principal Property, including Finance Lease transactions in connection with any such acquisition and including any purchase money Liens, and (b) Liens existing on any Principal Property at the time of acquisition (including acquisition through merger or consolidation) thereof or at the time of acquisition by the Company or any Restricted Subsidiary of any Person then owning such property, excluding any Liens put in place in anticipation or contemplation of such acquisition by the Company or any Restricted Subsidiary; provided that with respect to clause (a), the Liens shall be given within 12 months after the later of (i) such acquisition and/or the completion of any development, installation, construction, alteration, improvement, operation or repair, whichever is later, and (ii) the placing into commercial operation of such Principal Property after such acquisition or completion of any construction, alteration, improvement or repair and shall attach solely to the Principal Property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof, accessions thereto and insurance proceeds thereof;
5
(3) Liens in favor of the Company or one of its Subsidiaries;
(4) Liens on any Principal Property in favor of the United States of America or any state thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing, improving or repairing such Principal Property;
(5) Liens imposed by law, such as carriers’, warehousemen’s and mechanic’s Liens and other similar Liens arising in the ordinary course of business, Liens in connection with legal proceedings and Liens arising solely by virtue of any statutory, common law or contractual provision relating to banker’s Liens, rights of set-off or similar rights and remedies as to securities accounts, deposit accounts or other funds maintained with a creditor depository institution;
(6) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(7) Liens to secure the performance of bids, trade or commercial contracts (including insurance contracts), government contracts, purchase, construction, sales and servicing contracts (including utility contracts), leases, public, statutory or regulatory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business, deposits as security for contested taxes, import or other customs duties, liabilities to insurance carriers or for the payment of rent, and Liens to secure letters of credit, Guarantees, bonds or other sureties given in connection with the foregoing obligations or in connection with workers’ compensation, unemployment insurance or other types of social security or similar laws and regulations;
(8) leases, subleases, licenses or sublicenses granted to others not interfering in any material respect with the business of the Company and its Restricted Subsidiaries, taken as a whole;
(9) easements, rights of way, covenants, restrictions, minor encroachments, protrusions, municipal and zoning and building ordinances and similar charges, encumbrances, title defects or other irregularities, governmental restrictions on the use of property or conduct of business, and other similar charges and encumbrances and Liens in favor of Governmental Authorities and public utilities, that do not materially interfere with the ordinary course of business of the Company and its Subsidiaries, taken as a whole;
(10) any extension, renewal, substitution or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any Lien referred to in this or the preceding clauses (1) through (9), or any Liens that secure an extension, renewal, replacement, refinancing or refunding (including any successive extensions, renewals, replacements, refinancings or refundings) of any Indebtedness within 12 months of the maturity, retirement or other repayment or prepayment of the Indebtedness (including any such repayment pursuant to amortization obligations with respect to such Indebtedness) being extended, renewed, substituted, replaced, refinanced or refunded, which Indebtedness is or was secured by a Lien referred to in this or the preceding clauses (1) through (9); provided that such extension, renewal, substitution or replacement Lien will be limited to all or part of the same property that secured the Lien extended, renewed, substituted or replaced and the principal amount of Indebtedness secured is not increased (other than increases related to any premiums, accrued interest, commissions, discounts, costs, fees and expenses in connection with such extension, renewal, substitution or replacement);
6
(11) Liens on any real property, buildings or fixtures located at the Company’s Mission Bay Campus; and
(12) Liens on any Principal Property not described in clauses (1) through (11) above which would otherwise be subject to the restrictions set forth in Section 5.02, if after giving effect thereto, Aggregate Debt does not exceed an amount equal to the greater of (a) $10.0 billion, and (b) 15.0% of the Company’s Consolidated Total Assets measured as of the end of the most recent quarter for which financial statements are available. The Company or any Restricted Subsidiary also may, without equally and ratably securing the Notes, create or incur Liens that extend, renew, substitute or replace (including successive extensions, renewals, substitutions or replacements), in whole or in part, any Lien permitted pursuant to the preceding sentence.
For the avoidance of doubt, the inclusion of specific Liens in the definition of “Permitted Liens” shall not create any implication that the obligations secured by such Liens constitute Indebtedness.
“Principal Property” means any building, structure or other facility together with the underlying land and its fixtures that is real property located within the territorial limits of the United States of America (excluding its territories and possessions and Puerto Rico) owned by the Company or any Restricted Subsidiary, except for any facility that (1) has a net book value, on the date the determination of whether such property is a principal property is being made for purposes of the covenants set forth in Section 5.02 and 5.03, of less than 2% of the Company’s Consolidated Total Assets measured as of the end of the most recent quarter for which financial statements are available, or (2) in the opinion of the Board of Directors, is not of material importance to the business conducted by the Company and its Subsidiaries, taken as a whole.
“Rating Agency” means (1) Moody’s, S&P and/or Fitch, as applicable, and (2) if any ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Company (as certified by a resolution of the Board of Directors of the Company) as a replacement agency for Moody’s, S&P or Fitch, as the case may be.
“Ratings Decline Period” means, with respect to any Change of Control, the period that (1) begins on the earlier of (a) the date of the first public announcement of the occurrence of such Change of Control or of the Company’s intention or a stockholder of the Company, as applicable, to effect such Change of Control, or (b) the occurrence of such Change of Control, and (2) ends on the 60th calendar day following consummation of such Change of Control; provided, however, that such period shall be extended as to any Rating Agency if, as of such 60th calendar day, the Company’s Debt Rating, as noted by such Rating Agency, is under publicly announced consideration for downgrade by such Rating Agency.
“Redemption Price” means, when used with respect to any Note to be redeemed, the price at which it is to be redeemed pursuant to this Supplemental Indenture.
“Reference Government Bond Dealer” means (i) each of Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, Deutsche Bank AG, London Branch, Merrill Lynch International, BNP PARIBAS, or any of their affiliates that are primary European government securities dealers, and their respective successors; provided that if any of the foregoing or any of their affiliates shall cease to be a primary European government securities dealer (“Primary Dealer”), the Company shall substitute therefor another Primary Dealer and (ii) two other Primary Dealers selected by the Company.
7
“Reference Government Bond Dealer Quotations” means, with respect to each Reference Government Bond Dealer and any redemption date, the arithmetic average, as determined by the Company, of the bid and asked prices for the Comparable Government Bond (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Government Bond Dealer at 11:00 a.m., Central European Time (CET), on the third Business Day preceding such redemption date.
“Registrar” has the meaning provided in Section 2.04 hereof.
“Restricted Subsidiary” means any domestic Subsidiary that owns any Principal Property.
“Sale and Lease-Back Transaction” means any direct or indirect arrangement relating to property now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to another Person and the Company or a Restricted Subsidiary leases or rents it from such Person, unless (1) such transaction was entered into prior to or within 12 months after the Issue Date; (2) such transaction was for the lease back to the Company or a Restricted Subsidiary by the Company or any Subsidiary of any Principal Property; (3) such transaction involves a lease of a Principal Property executed by the time of or within 18 months (or in the case of any transaction supported by the credit of an export credit agency, 24 months) after the latest of (a) the acquisition, the completion of construction or improvement, alteration or repair of such Principal Property, and (b) the placing into commercial operation after the acquisition, completion, improvement, alteration or repair, of such Principal Property; or (4) such transaction involves a lease for not more than three years (or which may be terminated by the Company or the applicable Subsidiary within a period of not more than three years).
“Subsidiary” of a Person means a corporation, partnership, limited liability company or other similar entity a majority of whose Voting Stock is owned by such Person or a Subsidiary of such Person. Unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.
“S&P” means S&P Global Ratings and any successor to its rating agency business.
“Tax” or “Taxes” means all present and future taxes, levies, imposts, deductions, charges, duties and withholdings (including backup withholdings), fees and any charges of a similar nature (including interest, fines, penalties and other liabilities with respect thereto) that are imposed by any government or other taxing authority.
“Tax Jurisdiction” has the meaning set forth in Section 3.03(a).
“Tax Opinion” has the meaning set forth in Section 3.03(a). A Tax Opinion shall be deemed to be an Opinion of Counsel under the Base Indenture, including, without limitation, for purposes of Section 13.07 of the Base Indenture.
“Voting Stock” of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
8
FORM AND TERMS OF THE NOTES
Section 2.01 Scope of Supplemental Indenture.
This Supplemental Indenture amends and supplements the provisions of the Base Indenture, to which provisions reference is hereby made. The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time in accordance herewith, and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements. The provisions of this Supplemental Indenture shall supersede, with respect to the Notes, any conflicting provisions in the Base Indenture. In the case of any conflict between the Indenture and a Note, the provisions of the Indenture shall control and govern to the extent of such conflict.
Section 2.02 Terms of the Notes.
The following terms relate to the Notes:
(a) The 2029 Notes shall constitute a series of Securities having the title “3.750% Senior Notes due 2029,” the 2032 Notes shall constitute a separate series of Securities having the title “4.125% Senior Notes due 2032,” the 2034 Notes shall constitute a separate series of Securities having the title “4.375% Senior Notes due 2034,” the 2038 Notes shall constitute a separate series of Securities having the title “4.750% Senior Notes due 2038,” and the 2046 Notes shall constitute a separate series of Securities having the title “5.250% Senior Notes due 2046.”
(b) The aggregate principal amount of the 2029 Notes (the “Initial 2029 Notes”) that may be initially authenticated and delivered under the Indenture shall be €750,000,000, the aggregate principal amount of the 2032 Notes (the “Initial 2032 Notes”) that may be initially authenticated and delivered under the Indenture shall be €1,000,000,000, the aggregate principal amount of the 2034 Notes (the “Initial 2034 Notes”) that may be initially authenticated and delivered under the Indenture shall be €1,000,000,000, the aggregate principal amount of the 2038 Notes (the “Initial 2038 Notes”) that may be initially authenticated and delivered under the Indenture shall be €1,000,000,000, and the aggregate principal amount of the 2046 Notes (the “Initial 2046 Notes”) that may be initially authenticated and delivered under the Indenture shall be €750,000,000. The Company may from time to time, without the consent of the Holders, issue additional 2029 Notes (in any such case, “Additional 2029 Notes”), additional 2032 Notes (in any such case, “Additional 2032 Notes”), additional 2034 Notes (in any such case, “Additional 2034 Notes”), additional 2038 Notes (in any such case, “Additional 2038 Notes”), and additional 2046 Notes (in any such case, “Additional 2046 Notes”) having the same ranking and the same interest rate, maturity and other terms as the Initial 2029 Notes, the Initial 2032 Notes, the Initial 2034 Notes, the Initial 2038 Notes, or the Initial 2046 Notes, as the case may be. Any Additional 2029 Notes and the Initial 2029 Notes, any Additional 2032 Notes and the Initial 2032 Notes, any Additional 2034 Notes and the Initial 2034 Notes, any Additional 2038 Notes and the Initial 2038 Notes, or any Additional 2046 Notes and the Initial 2046 Notes, as the case may be, shall each constitute a single series under the Indenture and all references to the 2029 Notes shall include the Initial 2029 Notes and any Additional 2029 Notes, all references to the 2032 Notes shall include the Initial 2032 Notes and any Additional 2032 Notes, all references to the 2034 Notes shall include the Initial 2034 Notes and any Additional 2034 Notes, all references to the 2038 Notes shall include the Initial 2038 Notes and any Additional 2038 Notes, and all references to the 2046 Notes shall include the Initial 2046 Notes and any Additional 2046 Notes, unless the context otherwise requires; provided that unless such Additional 2029 Notes, Additional 2032 Notes, Additional 2034 Notes, Additional 2038 Notes or Additional 2046 Notes are issued pursuant to a “qualified reopening” of the Initial 2029 Notes, the Initial 2032 Notes, the Initial 2034 Notes, the Initial 2038 Notes or the Initial 2046 Notes, respectively, or are otherwise treated as part of the same “issue” of debt instruments as the Initial 2029 Notes, the Initial 2032 Notes, the Initial 2034 Notes, the Initial 2038 Notes or the Initial 2046 Notes, respectively, or are issued with no more than a de minimis amount of original discount, in each case, for U.S. federal income tax purposes, the Additional 2029 Notes, the Additional 2032 Notes, the Additional 2034 Notes, the Additional 2038 Notes or the Additional 2046 Notes, as applicable, shall have one or more separate ISIN and/or Common Code number(s), as applicable. The aggregate principal amount of the Additional 2029 Notes, the Additional 2032 Notes, the Additional 2034 Notes, the Additional 2038 Notes and the Additional 2046 Notes shall be unlimited. References to “CUSIP” numbers in the Base Indenture, including, but not limited to, Section 2.12 of the Base Indenture, shall be deemed replaced by “ISIN” and/or “Common Code” numbers, as applicable.
9
(c) The entire outstanding principal of each series of Notes shall be payable on the applicable Maturity Date for such series.
(d) The rate at which the 2029 Notes shall bear interest shall be 3.750% per year, the rate at which the 2032 Notes shall bear interest shall be 4.125% per year, the rate at which the 2034 Notes shall bear interest shall be 4.375% per year, the rate at which the 2038 Notes shall bear interest shall be 4.750% per year and the rate at which the 2046 Notes shall bear interest shall be 5.250% per year. The date from which interest shall accrue on the Notes shall be the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid, from the Issue Date. The “Interest Payment Date” for each of the 2029 Notes, the 2032 Notes, the 2034 Notes, the 2038 Notes and the 2046 Notes shall be on September 15 of each year, commencing September 15, 2027. Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the Notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date (each, a “regular record date”). Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from and including September 15, 2026, if no interest has been paid on the Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
(e) If any Interest Payment Date or date of maturity of principal of the Notes falls on a day that is not a Business Day, then payment of interest or principal may be made on the next succeeding Business Day with the same force and effect as if made on the nominal Interest Payment Date or the date of maturity, and no interest will accrue or be payable to Holders for the period after such nominal date.
(f) The Notes shall be issuable in whole in the form of one or more Global Securities (the “Global Notes”) and will be deposited with the Depositary for, and in respect of interests held through, Clearstream and Euroclear. The 2029 Notes shall be substantially in the form attached hereto as Exhibit A, the 2032 Notes shall be substantially in the form attached hereto as Exhibit B, the 2034 Notes shall be substantially in the form attached hereto as Exhibit C, the 2038 Notes shall be substantially in the form attached hereto as Exhibit D, and the 2046 Notes shall be substantially in the form attached hereto as Exhibit E, the terms of which are herein incorporated by reference. The Notes shall be issuable in denominations of €100,000 or an integral multiple of €1,000 in excess thereof.
(g) The Notes may be redeemed at the option of the Company prior to the applicable maturity date, as provided in Article 3 hereof.
(h) The Notes will not have the benefit of any sinking fund.
10
(i) Except as provided herein, the Holders shall have no special rights in addition to those provided in the Base Indenture upon the occurrence of any particular events.
(j) The Notes are not convertible into shares of common stock or other securities of the Company.
(k) The Notes will be general unsecured and unsubordinated obligations of the Company and will be ranked equally among themselves.
(l) The Notes will not have the benefit of any guarantees.
(m) Principal and interest on the Notes, including payments made upon any redemption or repurchase of the Notes, shall be payable in euros, subject to Section 2.03 of this Supplemental Indenture.
Section 2.03 Currency of Notes. The Notes shall be denominated in euro, and all payments of interest and principal, including payments made upon any redemption or Additional Amounts, if any, with respect to the Notes, will be payable in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in dollars until the euro is again available to the Company or so used. The amount payable on any date in euros will be converted into dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars pursuant to this Section 2.03 will not constitute an Event of Default under the Notes or the Indenture.
Section 2.04 Registrar and Paying Agent.
(a) The Company initially appoints U.S. Bank Europe DAC, UK Branch to act as the paying agent with respect to the Notes (together with its successors and assigns, the “Paying Agent”), and the Trustee to act as the Security Registrar with respect to the Notes (together with its successors and assigns, the “Registrar”) and as transfer agent with respect to the Notes (together with its successors and assigns, the “Transfer Agent”), in each case in accordance with the terms of the Agency Agreement and the Indenture.
(b) The Company may change the Paying Agent, Transfer Agent or Registrar without prior notice to the Holders.
(c) The Company designates the office of the Paying Agent at 125 Old Broad Street, Fifth Floor, London EC2N 1AR, United Kingdom as an agency where the Notes may be presented for payment and the office of the Registrar at 1 Federal Street, Boston, MA 02110, United States of America as an agency where the Notes may be presented for exchange or registration of transfer, in each case, as provided for in the Indenture.
11
Section 2.05 Book-Entry Provisions.
Owners of beneficial interests in the Global Notes will not be entitled to have Notes registered in their names, and will not receive or be entitled to receive physical delivery of Notes in definitive form. Except as provided below, beneficial owners will not be considered the owners or Holders of the Notes under the Indenture, including for purposes of receiving any reports delivered by the Company or the Trustee pursuant to the Indenture. Accordingly, each beneficial owner must rely on the procedures of the Clearstream or Euroclear and, if such person is not a participant of the Clearstream or Euroclear, on the procedures of the participant through which such person owns its interest, to exercise any rights of a Holder under the Indenture and the operation of customary practices of such persons governing the exercise of the rights of a Holder of a beneficial interest in any Note. Conveyance of notices and other communications by the clearing systems to their participants, by the participants to indirect participants and by the participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Persons that are not Clearstream or Euroclear participants may beneficially own Notes held by the Depositary for Clearstream and Euroclear only through direct or indirect participants in Clearstream and Euroclear. So long as the Depositary for Clearstream and Euroclear is the registered owner of the Global Note, the Depositary for all purposes will be considered the sole Holder of the Notes represented by the Global Note under the Indenture and the Global Note.
Members of, or participants and account holders in, Euroclear and Clearstream, (“Participants”) shall have no rights as a Holder under this Supplemental Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee or any custodian of the Depositary or under such Global Note, and the Depositary or its nominees may be treated by the Company, the Trustee, the Paying Agent and any agent of the Company, the Paying Agent or the Trustee as the sole owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or any agent of the Company, the Trustee or the Paying Agent from giving effect to any written certification, proxy or other authorization furnished by Euroclear and Clearstream or impair, as between Euroclear and Clearstream, on the one hand, and the Participants, on the other, the operation of customary practices of such persons governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.
The policies of Clearstream and Euroclear will govern payments, transfers, exchanges and other matters relating to an investor’s interest in the Notes held by them. If (i) the Depositary is at any time unwilling or unable to continue as depositary for the Global Notes and a successor depositary is not appointed by the Company within 90 days, (ii) an Event of Default has occurred with respect to the Notes represented by the Global Notes and has not been cured or waived, or (iii) the Company at any time and in its sole discretion determines not to have the Notes represented by Global Notes, then in any such case the Company will issue the Notes in definitive registered form in exchange for the applicable Global Notes. In any such instance, an owner of a beneficial interest in the Global Notes will be entitled to physical delivery in definitive form of Notes equal in principal amount to such beneficial interest and to have such Notes registered in its name. The Notes so issued in definitive form will be issued in minimum denominations of €100,000 and integral multiples of €1,000 thereafter.
None of the Trustee, the Paying Agent, the Registrar, the Transfer Agent or any agent of the foregoing shall be responsible or liable for any aspect of the records kept by Clearstream or Euroclear or any of their participants, any records relating to or payments made on account of beneficial ownership interests in the Global Notes, for maintaining, supervising or reviewing any records relating to such beneficial ownership interests, or for naming, or determining the need for, a successor Depositary.
12
OPTIONAL REDEMPTION
Section 3.01 Applicability of Article 3 of the Base Indenture. Article 3 of the Base Indenture shall not apply to the Notes. Instead the provisions set forth in this Article 3 shall, with respect to the Notes, supersede in their entirety Article 3 of the Base Indenture, and all references in the Base Indenture to Article 3 thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 3 or the applicable provisions set forth in this Article 3, respectively.
Section 3.02 Optional Redemption.
(a) Prior to the applicable Par Call Date, the Notes shall be redeemable, in whole or in part, at any time and from time to time, at the Company’s option, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the Optional Redemption Date) that would have been payable if such redemption had been made on the applicable Par Call Date (assuming the Notes of such series matured on such date), discounted to the Optional Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus (i) 15 basis points in the case of the 2029 Notes; (ii) 15 basis points in the case of the 2032 Notes; (iii) 20 basis points in the case of the 2034 Notes; (iv) 20 basis points in the case of the 2038 Notes; or (v) 25 basis points in the case of the 2046 Notes; and
(2) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding, the Optional Redemption Date.
(b) On or after the applicable Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Optional Redemption Date.
(c) The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee and the Paying Agent shall have no obligation to determine or verify any determination of the Redemption Price or select any Independent Investment Banker.
Section 3.03 Redemption for Tax Reasons.
(a) If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of the United States or a taxing authority of or in the United States (a “Tax Jurisdiction”) or the official position regarding the application or interpretation thereof, which change or amendment is announced or becomes effective on or after the Issue Date, the Company becomes or, based upon a written opinion of independent counsel selected by the Company (a “Tax Opinion”), will become obligated to pay Additional Amounts as described herein under Section 5.05 hereof with respect to any series of Notes, then the Company may at any time at its option redeem, in whole, but not in part, the Notes of such series on not less than 10 nor more than 60 days’ prior notice, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest, if any, on the Notes of such series to be redeemed to, but not including, the redemption date.
13
Section 3.04 Notice of Redemption. The Company shall give (or shall request the Trustee to give) notice of any redemption to Holders, which shall be mailed or electronically delivered (or otherwise transmitted in accordance with the Depositary’s applicable procedures) at least 10 days but not more than 60 days before the Optional Redemption Date to each Holder to be redeemed.
The notice shall identify the series of Notes to be redeemed and shall state:
(a) the Optional Redemption Date;
(b) the Redemption Price (or manner of calculation if not then known);
(c) the name and address of the Paying Agent;
(d) the aggregate principal amount of Notes that are being redeemed;
(e) that the Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(f) that interest on Notes of the Series called for redemption ceases to accrue on and after the Optional Redemption Date unless the Company defaults in the deposit of the Redemption Price; and
(g) that no representation is made as to the correctness or accuracy of the ISIN and/or Common Code number, if any, listed in such notice or printed on the Notes.
Notice of any redemption of the Notes in connection with a transaction or an event may, at the Company’s discretion, be given prior to the completion or the occurrence thereof. Any redemption or notice of redemption may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of a related transaction or event.
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to the Trustee, at least five Business Days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice and the form of such notice.
Unless the Company defaults in payment of the Redemption Price, on and after the Optional Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
Section 3.05 Selection of Notes to Be Redeemed. In the case of a partial redemption, selection of the Notes for redemption shall be made pro rata, by lot or by such other method as the Trustee deems appropriate and fair (subject to the applicable procedures of Clearstream or Euroclear). No Notes of a principal amount of €1,000 or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note shall state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note shall be issued in the name of the Holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by Clearstream or Euroclear, as applicable, the redemption of the Notes shall be done in accordance with the policies and procedures of the applicable clearing system.
14
Section 3.06 Effect of Notice of Redemption. Once the notice of redemption described in Section 3.04 is mailed (or delivered) and any conditions precedent to such redemption have been satisfied, the Notes called for redemption become irrevocably due and payable on the Optional Redemption Date and at the Redemption Price, including any premium, plus interest accrued to the Optional Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at the Redemption Price, including any premium, plus interest accrued to the Optional Redemption Date; provided that (a) if the Optional Redemption Date is after a regular record date and on or prior to the Interest Payment Date, the accrued and unpaid interest shall be payable to the Holder of the redeemed Notes registered on the relevant regular record date; and (b) if an Optional Redemption Date is not a Business Day, payment shall be made on the next succeeding Business Day and no interest shall accrue for the period from such Optional Redemption Date to such succeeding Business Day. Such notice, if mailed (or delivered) in the manner provided in Section 3.04, shall be conclusively presumed to have been given whether or not the Holder receives such notice; provided, however, that at the Company’s discretion, the Optional Redemption Date may be delayed until such time as any or all conditions precedent to such redemption shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Optional Redemption Date, or by the Optional Redemption Date as so delayed. The Company shall provide written notice to the Trustee prior to the close of business two Business Days prior to the Optional Redemption Date if any such redemption has been rescinded or delayed, and the Trustee shall provide such notice to each Holder of the Notes to be redeemed in the same manner in which the notice of redemption was given.
Section 3.07 Deposit of Redemption Price. On or prior to 11:00 A.M. (London time), on the applicable Optional Redemption Date, the Company shall deposit with the Paying Agent (or the Trustee) in immediately available funds money sufficient to pay the Redemption Price of, including premium, if any, and accrued and unpaid interest on, all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date which have been delivered by the Company to the Trustee for cancellation.
REPURCHASE UPON A CHANGE OF CONTROL
Section 4.01 Change of Control.
The following additional covenant shall apply with respect to each series of Notes so long as any of the Notes of such series remain outstanding:
(a) Change of Control Triggering Event.
(1) If a Change of Control Triggering Event occurs with respect to the Notes, unless the Company shall have exercised its option to redeem the Notes in full, as set forth in Article 3 of this Supplemental Indenture, or the Company shall have satisfied and discharged the Notes or defeased the Notes, as set forth in Article 11 of the Base Indenture or Article 7 of this Supplemental Indenture, respectively, the Company shall make an offer (the “Change of Control Offer”) to each Holder to repurchase any and all of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes to be repurchased (such principal amount to be equal to €100,000 or an integral multiple of €1,000 in excess of €100,000), plus accrued and unpaid interest, if any, on the Notes to be repurchased up to, but excluding, the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, the Company shall give written notice to the Trustee and Holders describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is given (the “Change of Control Payment Date”), pursuant to the procedures required by the Notes and described in such notice.
15
(2) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate, stating (1) the aggregate principal amount of Notes or portions of Notes being repurchased, (2) that all conditions precedent contained herein to make a Change of Control Offer have been complied with and (3) that the Change of Control Offer has been made in compliance with the Indenture.
(3) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of this Article 4, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Article 4 by virtue of any such conflict.
(4) Notwithstanding the foregoing, the Company shall not be required to make a Change of Control Offer for the Notes upon a Change of Control Triggering Event if (a) a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all the Notes properly tendered and not withdrawn under its offer, or (b) prior to the occurrence of the related Change of Control Triggering Event, the Company has given written notice of a redemption as provided under Article 3 of this Supplemental Indenture unless the Company has failed to pay the Redemption Price on the Optional Redemption Date.
(5) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making such an offer in lieu of the Company as described in Section 4.01(a)(4) of this Supplemental Indenture, purchase all of such Notes properly tendered and not withdrawn by such Holders, the Company, or such third party, has the right, upon not less than 10 days’ nor more than 60 days’ prior notice (provided that such notice is given not more than 60 days following such repurchase pursuant to the applicable Change of Control Offer) to redeem all Notes that remain outstanding following such purchase on a date specified in such notice (the “Second Change of Control Purchase Date”) and at a price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but excluding, the Second Change of Control Purchase Date.
16
CERTAIN COVENANTS OF THE COMPANY
Section 5.01 Applicability of Article 4 of the Base Indenture. Article 4 of the Base Indenture shall apply to the Notes and, with respect only to the Notes, will be supplemented by the additional covenants set forth in this Article 5.
Section 5.02 Limitation on Liens.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to enter into, create, incur or assume any Lien on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:
(1) Liens existing as of the Issue Date;
(2) Liens granted after the Issue Date created in favor of the Holders of such Notes;
(3) Liens created in substitution of, or as replacements for, any Liens described in clause (1) and (2) above; provided that based on a good faith determination of one of the Financial Officers, the Principal Property encumbered under any such substitute or replacement Lien is substantially similar in nature to the Principal Property encumbered by the otherwise permitted Lien which is being replaced and the principal amount of Indebtedness secured is not increased (other than increases related to any premiums, accrued interest, commissions, discounts, costs, fees and expenses in connection with such substitutions or replacements); and
(4) Permitted Liens.
Section 5.03 Limitation on Sale and Lease-Back Transactions.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into any Sale and Lease-Back Transaction covering any Principal Property, unless:
(1) the Company or the applicable Subsidiary would be entitled to incur Indebtedness secured by a mortgage on the property to be leased in an amount equal to Attributable Liens with respect to such Sale and Lease-Back Transaction without equally and ratably securing the Notes pursuant to Section 5.02 above; or
(2) the Company or the applicable Subsidiary applies an amount equal to the Attributable Liens with respect to such Sale and Lease-Back Transaction to the purchase of another Principal Property or to the retirement or other repayment or prepayment of long-term Indebtedness within 365 calendar days before or after the effective date of any such Sale and Lease-Back Transaction; provided that, in lieu of applying such amount to such retirement, repayment or prepayment, the Company or any Subsidiary may deliver Notes to the Trustee for cancellation, such Notes to be credited at the cost thereof to the Company or such Subsidiary.
17
Section 5.04 Consolidation, Merger and Sale of Assets.
(a) The Company will not consolidate with or merge with or into, or convey, sell, transfer or lease all or substantially all of its and its Subsidiaries’ properties and assets (determined on a consolidated basis), taken as a whole, to, any Person, in a single transaction or in a series of related transactions, unless:
(1) either (a) the Company is the Person formed by or surviving any such consolidation or merger (the Person formed by or surviving a consolidation or merger, the “continuing Person”) or (b) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all of the Company and its Subsidiaries’ properties and assets (determined on a consolidated basis), taken as a whole (the “Successor Company”), is an entity organized under the laws of the United States of America, any state thereof or the District of Columbia;
(2) if the Company is not the continuing Person, the Successor Company expressly assumes the Company’s obligations with respect to the Notes and the Indenture pursuant to a supplemental indenture;
(3) immediately after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing; and
(4) if the Company is not the continuing Person, the Company has or the Successor Company has delivered to the Trustee the certificates and opinions required under the Indenture.
Upon any transaction or series of related transactions to which the foregoing requirements apply and are effected in accordance with such requirements, the Successor Company shall succeed to, and be substituted for, the Company, and may exercise every right and power of the Company under the Indenture with the same effect as if such Successor Company had been named as the Company therein; and when a Successor Company duly assumes all of the Company’s obligations and covenants pursuant to the Indenture and the Notes, except in the case of a lease, the predecessor Person shall be relieved of all such obligations.
Section 5.05 Payment of Additional Amounts.
(a) The Company will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts (the “Additional Amounts”) as are necessary in order that the net payment by the Company or the Paying Agent of the principal, premium, if any, and interest with respect to the Notes to a Holder that is not a United States Person (as defined below), after withholding or deduction for any present or future tax, assessment or other governmental charge imposed by the United States or a taxing authority in the United States, will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay Additional Amounts will not apply:
(1) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder, a fiduciary, settlor, beneficiary, member or shareholder of the Holder, or a person holding a power over an estate or trust administered by a fiduciary holder, being treated as:
(a) being or having been present in, or engaged in a trade or business in, the United States, being treated as having been present in, or engaged in a trade or business in, the United States, or having or having had a permanent establishment in the United States;
18
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the Indenture), including being or having been a citizen or resident of the United States or treated as being or having been a resident thereof;
(c) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for U.S. federal income tax purposes, a foreign tax exempt organization, or a corporation that has accumulated earnings to avoid U.S. federal income tax;
(d) being or having been a “10-percent shareholder,” as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision, of the Company; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, within the meaning of section 881(c)(3) of the Code or any successor provision;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from payments on the Notes;
(5) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(7) to any tax, assessment or other governmental charge required to be imposed, withheld or deducted pursuant to Sections 1471 through 1474 of the Code (or any amended or successor version of such Sections), any U.S. Treasury regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
19
(8) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(9) to any tax, assessment or other governmental charge imposed by reason of the failure of the beneficial owner to fulfill the statement requirements of Section 871(h) or Section 881(c) of the Code; or
(10) to any tax imposed as a result of any combination of items (1) through (9) above.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 5.05, the Company will not be required to pay Additional Amounts in respect of any tax, assessment or other governmental charge.
(c) Neither the Trustee nor the Paying Agent shall have any responsibility or obligation to determine if Additional Amounts pursuant to the foregoing are due and payable or to verify the amount of any such Additional Amounts.
(d) As used in this Section 5.05 and under Section 3.03 hereof,
(1) “United States” means the United States of America, any state thereof and the District of Columbia; and
(2) “United States Person” means (i) any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia (other than a partnership that is not treated as a United States person for U.S. federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a U.S. court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
Section 6.01 Applicability of Article 6 of the Base Indenture. Article 6 of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 6 shall, with respect to each series of Notes, supersede in its entirety Article 6 of the Base Indenture, and all references in the Base Indenture to Article 6 thereof and the provisions therein, as the case may be, shall, with respect to each series of Notes, be deemed to be references to this Article 6 and the applicable provisions set forth in this Article 6, respectively.
Section 6.02 Events of Default. Wherever used herein with respect to a series of Notes, “Event of Default” means any one or more of the following events that has occurred and is continuing:
(a) default in the payment of any interest upon any Note of that series when it becomes due and payable, and continuance of such default for a period of 30 consecutive days;
20
(b) default in the payment of the principal of or premium, if any, on any Note of that series at its stated maturity or when otherwise due and payable;
(c) failure by the Company to observe or perform any term of the Indenture (other than those referred to in (a) or (b) above) for a period of 90 consecutive days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes of that series, a written notice specifying such default and requiring it to be remedied and stating that such notice is a “notice of default” hereunder;
(d) the entry by a court having competent jurisdiction in the premises of:
(1) an order for relief in respect of the Company or any Restricted Subsidiary as debtor in an involuntary proceeding under any applicable Bankruptcy Law and such order shall remain unstayed and in effect for a period of 60 consecutive days; or
(2) a final and non-appealable order appointing a Custodian of the Company or any Restricted Subsidiary, or ordering the winding up or liquidation of the affairs of the Company or any Restricted Subsidiary, and such order shall remain unstayed and in effect for a period of 60 consecutive days; or
(e) the commencement by the Company or any of its Restricted Subsidiaries of a voluntary proceeding under any applicable Bankruptcy Law or the consent by the Company or any of its Restricted Subsidiaries as debtor to the entry of a decree or order for relief in an involuntary proceeding under any applicable Bankruptcy Law, or the filing by the Company or any of its Restricted Subsidiaries as debtor of a consent to an order for relief in any involuntary proceeding under any Bankruptcy Law, or to the appointment of a Custodian or the making by the Company or any of its Restricted Subsidiaries of an assignment for the benefit of creditors.
The Trustee shall not be deemed to have knowledge of any Default or Event of Default unless and until a Responsible Officer receives written notification of such Event of Default describing the circumstances of such, and identifying the circumstances constituting such Event of Default and stating that such notification is a notice of default.
Section 6.03 Acceleration; Rescission and Annulment. If one or more Events of Default with respect to the Notes of a series shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be 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), then, and in each and every such case (other than an Event of Default specified in Section 6.02(d) or Section 6.02(e) with respect to the Company), either the Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Notes of the applicable series, by notice in writing to the Company (and to the Trustee if given by Holders of such series of Notes), may (and the Trustee, at the written request of such Holders of such series of Notes accompanied by security and/or indemnity satisfactory to the Trustee and otherwise subject to the limitations set forth in the Indenture, shall) declare 100% of the principal of, and accrued and unpaid interest on, all the Notes of such series to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable without any action on the part of the Trustee. If an Event of Default specified in Section 6.02(d) or Section 6.02(e) with respect to the Company occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if any, on, all Notes shall become and shall automatically be immediately due and payable without the declaration or other act by the Trustee, the Holders of the Notes or any other party. If an Event of Default with respect to the Notes of a series occurs and is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of principal of and interest on the Notes of such series or to enforce the performance of any provision of the Notes of such series or the Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes of such series or does not produce any of them in the proceeding.
21
The immediately preceding paragraph, however, is subject to the conditions that if, at any time after the principal of any series of Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, and all existing Events of Default under the Indenture with respect to such series, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes of such series that shall have become due solely by such acceleration, shall have been cured or waived pursuant to Section 6.09, then and in every such case the Holders of a majority in aggregate principal amount of such series of Notes then Outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of Default with respect to such series of Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon.
Section 6.04 Payments of Notes on Default; Suit Therefor. If an Event of Default described in Section 6.02(a) or Section 6.02(b) shall have occurred with respect to a series of Notes, the Company shall, upon demand of the Trustee or the requisite Holders of such series, pay to the Trustee, for the benefit of the Holders of such series of Notes, the whole amount then due and payable on such Notes for principal and interest, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest, if any, at the rate borne by the Notes at such time, and, in addition thereto, such further amount as shall be sufficient to cover any amounts due to the Trustee under Section 7.06 of the Base Indenture with respect to such series of Notes. 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, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the applicable series of Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such series of Notes, wherever situated.
In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other applicable law, or in case a Custodian shall have been appointed for or taken possession of the Company or such other obligor, the property of the Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the principal of any series of Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 6.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 7.06 of the Base Indenture; and any Custodian is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including any other amounts due to the Trustee under Section 7.06 of the Base Indenture, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
22
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under the Indenture, or under any series of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and 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 the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the applicable series of Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of the Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the applicable series of Notes, and it shall not be necessary to make any Holders of such series parties to any such proceedings.
In case the Trustee shall have proceeded to enforce any right under the Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant to Section 6.09 or any rescission and annulment pursuant to Section 6.03 or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the applicable Holders and the Trustee shall, subject to any determination in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, such Holders and the Trustee shall continue as though no such proceeding had been instituted.
Section 6.05 Application of Monies Collected by Trustee. Any monies or property collected by the Trustee pursuant to this Article 6 with respect to a series of Notes shall be paid over to the Paying Agent and applied in the following order, at the date or dates fixed by the Trustee or the Paying Agent for the distribution of such monies or property, upon presentation of such series of Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST, to the payment of all amounts due the Trustee (in any capacity hereunder) under Section 7.06 of the Base Indenture and to the Paying Agent with respect to such series of Notes;
SECOND, to the payment of the amounts then due and unpaid upon such series of Notes for principal (and premium, if any) and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal (and premium, if any) and interest, respectively; and
THIRD, to the payment of the remainder, if any, to the Company.
23
Section 6.06 Proceedings by Holders. Except to enforce the right to receive payment of principal or interest when due, no Holder of any Note of any series shall have any right by virtue of or by availing of any provision of the Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to the Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided, with respect to such series of Notes;
(b) Holders of at least 25% in principal amount of the Notes of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and such Holders shall have offered, and if requested, provided, to the Trustee such security and/or indemnity satisfactory to it against any loss, liability or expense to be incurred therein or thereby;
(c) the Trustee for 60 days after its receipt of such notice, request and offer of such security or indemnity shall have neglected or refused to institute any such action, suit or proceeding with respect to such series of Notes; and
(d) no direction that is inconsistent with such written request shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes with respect to such series then Outstanding within such 60-day period pursuant to Section 6.09,
it being understood and intended, and being expressly covenanted by the taker and Holder of every Note of such series with every other taker and Holder of such series of Notes and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of the Indenture to affect, disturb or prejudice the rights of any other Holder of such series of Notes (it being understood that the Trustee shall not have an affirmative duty to ascertain whether or not any such direction is unduly prejudicial to any other Holder), or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under the Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of such series of Notes (except as otherwise provided herein). For the protection and enforcement of this Section 6.06, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of the Indenture and any provision of any Note, each Holder shall have the right to receive payment of the principal of, and premium, if any, and accrued and unpaid interest, if any, on, such Note, on or after the respective due dates expressed or provided for in such Note or in the Indenture, or to institute suit for the enforcement of any such payment and such right to receive such payment on or after such respective dates shall not be impaired or affected without the consent of such Holder.
Section 6.07 Proceedings by Trustee. In case of an Event of Default, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by the Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in the Indenture, or to enforce any other legal or equitable right vested in the Trustee by the Indenture or by law.
Section 6.08 Remedies Cumulative and Continuing. All powers and remedies given by this Article 6 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in the Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 6.07, every power and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
24
Section 6.09 Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of any series of Notes at the time Outstanding shall have the right, with respect to such series of Notes, 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 of Notes; provided, however, that such direction shall not be in conflict with any rule of law or with this Indenture or subject the Trustee in its sole discretion to personal liability. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or officers of the Trustee, determine that the proceeding so directed, subject to the Trustee’s duties under the Trust Indenture Act, may involve the Trustee in personal liability, or if it is not provided with security and/or indemnity to its satisfaction may take any other action it deems proper that is not inconsistent with any such direction received from Holders. In addition, the Trustee will not be required to expend its own funds under any circumstances. The Holders of at least a majority in aggregate principal amount of any series of Notes at the time Outstanding may on behalf of the Holders of all of the Notes of such series waive any past Default or Event of Default hereunder and its consequences except (1) a default in the payment of accrued and unpaid interest, if any, on, or the principal of, such Notes, or (2) a default in respect of a covenant or provision hereof which under Article 8 cannot be modified or amended without the consent of each Holder of an Outstanding Note affected; provided, however, that the Holders of a majority in principal amount of the series of Notes at the time Outstanding may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver the Company, the Trustee and the Holders of such series of Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.09, said Default or Event of Default shall for all purposes of the Notes and the Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 6.10 Notice of Defaults. The Trustee shall, within 90 days after the occurrence and continuance of an Event of Default of which a Responsible Officer receives written notice or obtains actual knowledge, deliver to all Holders notice of all Events of Default known to a Responsible Officer, unless such Events of Default shall have been cured or waived before the giving of such notice; provided that, except in the case of an Event of Default in the payment of the principal of, or accrued and unpaid interest on, any of the Notes, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders (it being understood that the Trustee shall not have an affirmative duty to make such determination). The Trustee shall not be deemed to have knowledge of an Event of Default unless and until a Responsible Officer receives written notification of such Event of Default describing the circumstances of such, and identifying the circumstances constituting such Event of Default and stating that such notification is a “notice of default.”
Section 6.11 Undertaking to Pay Costs. All parties to the Indenture agree, and each Holder of any Note by its 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 the 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; provided that the provisions of this Section 6.11 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Notes at the time Outstanding, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or accrued and unpaid interest, if any, on any Note on or after the due date expressed or provided for in such Note or the Indenture.
25
DEFEASANCE
(a) The Company may, at its option and at any time, elect to have all of its obligations legally released with respect to the outstanding Notes of any series (“Legal Defeasance”). Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the applicable series of Notes and this Supplemental Indenture shall cease to be of further effect as to all outstanding Notes of such series, except for:
(1) the rights of Holders of such Notes to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to in Section 7.02(a);
(2) the Company’s obligations with respect to the Notes to register the transfer and exchange of such Notes, to replace mutilated, destroyed, lost or stolen Notes of such series, to maintain paying agencies and to hold money for payment in trust with respect to such series;
(3) the rights, powers, trusts, duties and immunities of the Trustee, and the obligations of the Company in connection therewith; and
(4) the Legal Defeasance provisions of this Supplemental Indenture.
(b) In addition, the Company may, at its option and at any time, elect to have its obligations released with respect to (1) their respective obligations under Article 4, Section 5.01 through 5.04 and Article 9, inclusive, with respect to the outstanding Notes of such series and (2) the operation of Section 6.02(c), (d) and (e) (only as such clauses, (d) and (e) apply to Restricted Subsidiaries) (“Covenant Defeasance”) on and after the conditions in Section 7.02 with respect to Covenant Defeasance are satisfied, and thereafter any omission to comply with such obligations will not constitute a Default or Event of Default with respect to the Notes. The Company may exercise its Legal Defeasance option regardless of whether it previously exercised Covenant Defeasance.
(c) If the Company exercises its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect thereto.
(d) Upon satisfaction of the conditions set forth herein and upon request of the Company, the Trustee shall acknowledge in writing the discharge of those obligations that the Company terminates.
26
Section 7.02 Conditions to Defeasance. In order to exercise either Legal Defeasance or Covenant Defeasance with respect to any series of Notes:
(a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of all Holders or all other beneficial owners of such series of Notes outstanding, a combination of money and/or Governmental Obligations in an amount sufficient, in the written opinion of or as certified by a nationally recognized investment bank, appraisal firm or firm of independent public accountants delivered to the Trustee, that will generate enough cash to make interest, principal, any premium, and any other payments on the outstanding Notes of such series on the stated maturity or on the applicable Optional Redemption Date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular Optional Redemption Date;
(b) in the case of Legal Defeasance, the Company has delivered to the Trustee an Opinion of Counsel confirming that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company has delivered to the Trustee an Opinion of Counsel confirming that the beneficial owners of the outstanding Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default has occurred and is continuing under this Indenture on the date of such deposit; and
(e) the Company must deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance of the Notes have been complied with.
If the funds deposited with the Trustee to effect Covenant Defeasance are insufficient to pay the principal of and interest on the Notes when due, then the Company’s obligations under the Indenture will be revived and no such defeasance will be deemed to have occurred.
Section 7.03 Deposited Money and Governmental Obligations to Be Held in Trust; Other Miscellaneous Provisions. All money and Governmental Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 7.02(a) in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and the Indenture, to the payment, either directly or through any Paying Agent, to the Holders of such series of Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and accrued and unpaid interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Governmental Obligations deposited pursuant to Section 7.02(a) or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
27
Anything in this Article 7 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon a request of the Company any money or Governmental Obligations held by it as provided in Section 7.02(a) 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 which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 7.04 Reinstatement. If the Trustee or Paying Agent is unable to apply any money or Governmental Obligations in accordance with Section 7.02 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 obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article 7 until such time as the Trustee or Paying Agent is permitted to apply all such money or Governmental Obligations in accordance with Section 7.02; provided, however, that if the Company has made any payment of principal or interest of any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Governmental Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
Article
8
MODIFICATION AND WAIVER
Section 8.01 Applicability of Article 9 of the Base Indenture. Article 9 of the Base Indenture, as modified by this Article 8, shall apply to the Notes.
Section 8.02 Supplemental Indentures without Consent of Holders of Notes. Section 9.01 of the Base Indenture shall not apply to the Notes. Instead, this Section 8.02 shall, with respect to each series of Notes, supersede in its entirety Section 9.01 of the Base Indenture, and all references in the Base Indenture to Section 9.01 thereof shall, with respect to each series of Notes, be deemed to be references to this Section 8.02:
“The Company, together with the Trustee, may modify or amend the Indenture and the terms of the Notes without the consent of any Holders of the Notes to:
(a) allow the successor (or successive successors) to the Company to assume the Company’s obligations under the Indenture and the Notes pursuant to Section 5.04 of this Supplemental Indenture;
(b) add to the covenants of the Company for the benefit of the Holders of the Notes or the Trustee, Paying Agent, Registrar or other agent or similar Person or surrender any right or power conferred upon the Company under the Indenture or the Notes;
(c) add any additional Events of Default;
(d) add to or change any provisions of the Indenture or the Notes to the extent necessary to permit or facilitate the issuance of Notes in uncertificated form;
(e) amend or supplement any provisions of the Indenture or the Notes to the extent such amendment or supplement does not apply to any outstanding Notes issued prior to the date of such amendment or supplement and entitled to the benefits of such provision;
28
(f) secure the Notes and provide for the terms of the release of such security;
(g) add guarantees with respect to the obligations of the Company under the Notes and provide for the terms of the release of such guarantees;
(h) provide for a successor Trustee with respect to the Notes or otherwise change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one Trustee;
(i) provide for the issuance of additional Notes to the extent permitted under the Indenture;
(j) provide for a co-obligor with respect to the Notes;
(k) cure any ambiguity, omission, defect or inconsistency, as determined in good faith by the Company;
(l) conform the Indenture or the Notes to the Description of the Notes and Description of Debt Securities contained in the Company’s prospectus supplement dated September 9, 2026 and prospectus dated February 13, 2026 relating to the Notes;
(m) comply with the rules and regulations of Clearstream and Euroclear or any other clearing system or Depositary and the rules and regulations of any securities exchange or automated quotation system on which the Notes may be listed or traded; or
(n) make any other amendment or supplement to the Indenture or the Notes, as long as that amendment or supplement does not adversely affect the rights of the Holders of any Notes in any material respect, as determined in good faith by the Company.
No amendment to this Supplemental Indenture, the Indenture or the Notes made solely to conform this Supplemental Indenture, the Indenture or the Notes to the Description of the Notes and Description of Debt Securities contained in the Company’s prospectus supplement dated September 9, 2026 and prospectus dated February 13, 2026 relating to the Notes shall be deemed to adversely affect the interests of the Holders of the Notes.
Upon the request of the Company, when authorized by a Board Resolution, the Trustee shall join with the Company in the execution of any amended supplemental indenture authorized or permitted by the terms of the Indenture or this Supplemental Indenture and to make any further appropriate agreements and stipulations which may be contained therein.”
Section 8.03 Supplemental Indentures with Consent of Holders of Notes. Section 9.02 of the Base Indenture shall not apply to the Notes. Instead, this Section 8.03 shall, with respect to each series of Notes, supersede in its entirety Section 9.02 of the Base Indenture, and all references in the Base Indenture to Section 9.02 thereof shall, with respect to each series of Notes, be deemed to be references to this Section 8.03:
“The Company, together with the Trustee, may modify or amend the Indenture and the terms of a series of Notes with the consent of the Holders of at least a majority in principal amount of the Outstanding Notes of such series; provided, however, that no such modification or amendment shall, without the consent of each Holder of the outstanding Notes of the affected series:
29
(a) change the stated maturity of the principal of, or any installment of interest on, any Note;
(b) reduce the principal of, or rate of interest on, any Note;
(c) reduce any amount payable upon the redemption or purchase at the option of the Holder of any Note;
(d) change any place of payment where, or the currency in which, any principal of, or premium, if any, or interest on, any Note is payable;
(e) impair the right to institute suit for the enforcement of any payment on, or with respect to, any Note on or after the stated maturity or Optional Redemption Date; or
(f) reduce the percentage in principal amount of Outstanding Notes the consent of whose Holders is required for modification or amendment of the Indenture or for waiver of compliance with provisions of the Indenture or waiver of Defaults or Events of Default, in each case, with respect to or in respect of provisions hereof and thereof that cannot be modified or waived without the consent of the Holder of each Outstanding Note affected thereby.”
It shall not be necessary for the consent of the Holder of any series of Notes affected thereby under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. The Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise.
In addition, the Holders of at least a majority in aggregate principal amount of the outstanding Notes of a series may, on behalf of the Holders of all Notes of such series waive compliance with the Company’s covenants in Section 5.02 or Section 5.03 of this Supplemental Indenture.
REPORTS BY THE COMPANY
Section 9.01 Applicability of Article 5 of the Base Indenture. Article 5 of the Base Indenture shall apply to the Notes and, with respect only to the Notes, will be modified as set forth in this Article 9.
Section 9.02 Reports by the Company. The reference to “30 days” in Section 5.03(a) of the Base Indenture shall, with respect to the Notes, be replaced with “15 days.”
Section 9.03 Compliance Certificate. To the extent any Notes are Outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under the Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in the Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
30
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls. If any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this Supplemental Indenture by the Trust Indenture Act, the required provision shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 10.02 Governing Law. This Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Section 10.03 Multiple Counterparts. The parties may sign multiple counterparts of this Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same Supplemental Indenture.
Section 10.04 Severability. Each provision of this Supplemental Indenture shall be considered separable, and if for any reason any provision which is not essential to the effectuation of the basic purpose of this Supplemental Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and a Holder shall have no claim therefor against any party hereto.
Section 10.05 Relation to Indenture. This Supplemental Indenture constitutes a part of the Indenture, the provisions of which shall apply to the series of Securities established by this Supplemental Indenture, but this Supplemental Indenture shall not modify, amend or otherwise affect the Base Indenture insofar as it relates to any other series of Securities or modify, amend or otherwise affect in any manner the terms and conditions of the Securities of any other series.
Section 10.06 Ratification. The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed. The Base Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Supplemental Indenture supersede any conflicting provisions included in the Base Indenture unless not permitted by law. The Trustee accepts the trusts created by the Base Indenture, as supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Base Indenture, as supplemented by this Supplemental Indenture.
Section 10.07 Effectiveness. The provisions of this Supplemental Indenture shall become effective as of the date hereof.
Section 10.08 Trustee Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or of the Notes. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Notes or the proceeds thereof. In the performance of its obligations hereunder, the Trustee shall be provided with all rights, benefits, protections, indemnities and immunities afforded to it pursuant to the Indenture.
31
Section 10.09 Paying Agent. U.S. Bank Europe DAC, UK Branch has been appointed by the Company as Paying Agent for the Notes pursuant to the Agency Agreement. In acting under the Indenture or with respect to the Notes, the Paying Agent shall be entitled to all rights, benefits, protections, indemnities and immunities afforded to it pursuant to the Agency Agreement.
Section 10.10 Electronic Signatures. Documents executed, scanned and transmitted electronically and electronic signatures, including those created or transmitted through a software platform or application, shall be deemed original signatures for purposes of this Supplemental Indenture and all matters and agreements related thereto, with such scanned and electronic signatures having the same legal effect as original signatures. The parties agree that this Supplemental Indenture or any instrument, agreement or document necessary for the consummation of the transactions contemplated by this Indenture or related hereto or thereto (including, without limitation, addendums, amendments, notices, instructions, communications with respect to the delivery of securities or the wire transfer of funds or other communications) (“Executed Documentation”) may be accepted, executed or agreed to through the use of an electronic signature in accordance with applicable laws, rules and regulations in effect from time to time applicable to the effectiveness and enforceability of electronic signatures. Any Executed Documentation accepted, executed or agreed to in conformity with such laws, rules and regulations will be binding on all parties hereto to the same extent as if it were physically executed, and each party hereby consents to the use of any third-party electronic signature capture service providers as may be reasonably chosen by a signatory hereto or thereto. When the Trustee acts on any 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.
[Remainder Of This Page Intentionally Left Blank]
32
In Witness Whereof, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first above written.
| UBER TECHNOLOGIES, INC. | ||
| By: | /s/ Balaji Krishnamurthy | |
| Name: Balaji Krishnamurthy | ||
| Title: Chief Financial Officer | ||
[Signature Page to Third Supplemental Indenture]
| U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee | ||
| By: | /s/ James H. Byrnes | |
| Name: James H. Byrnes | ||
| Title: Vice President | ||
[Signature Page to Third Supplemental Indenture]
EXHIBIT A
Form of 3.750% Senior Notes Due 2029
Exhibit A
Form of 3.750% Senior Notes Due 2029
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, HAS AN INTEREST HEREIN.
| No. [●] | €[●] |
| CUSIP No. [●] | |
| COMMON CODE [●] | |
| ISIN [●] |
UBER TECHNOLOGIES, INC.
3.750% SENIOR NOTES DUE 2029
UBER TECHNOLOGIES, INC., a Delaware corporation (the “Company,” which term includes any successor entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to USB Nominees (UK) Limited, or its registered assigns, the principal sum of €[●] (as may be increased or decreased as reflected on the Schedule of Increases or Decreases in the Global Security attached hereto) on September 15, 2029 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Date: Annually in arrears on September 15 of each year, commencing September 15, 2027.
Record Date: The close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date.
Each Holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been manually signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Ex. A-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
| UBER TECHNOLOGIES, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page – Global Note]
Ex. A-3
CERTIFICATE OF AUTHENTICATION
This is one of the 3.750% Senior Notes due 2029 issued by Uber Technologies, Inc. of the series designated therein referred to in the within-mentioned Indenture.
Date:
| U.S. BANK TRUST COMPANY, | ||
| NATIONAL ASSOCIATION | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Ex. A-4
Uber Technologies, Inc.
3.750% Senior Notes due 2029
This security is one of a duly authorized series of debt securities of Uber Technologies, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture, dated as of September 9, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated as of September 15, 2026 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Supplemental Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 3.750%. The Company will pay interest annually in arrears on September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay (each such day, an “Interest Payment Date”). Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the Notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date (each, a “regular record date”). Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from and including September 15, 2026, if no interest has been paid on the Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The term “Business Day” as used herein means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates. The rights of holders of beneficial interests of notes to receive the payments of interest on such notes are subject to the applicable procedures of Clearstream and Euroclear.
Ex. A-5
2. Method of Payment. The Company will pay interest and Additional Amounts, if any, on the Securities to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the Change of Control Payment Date, as applicable, is after a regular record date and on or prior to the Interest Payment Date, interest on such Securities will instead be paid upon presentation and surrender of such Securities as provided in the Indenture. All payments of interest and principal, including payments made upon any redemption or Additional Amounts, if any, with respect to the Securities, will be made in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in dollars until the euro is again available to the Company or so used.
The amount payable on any date in euros will be converted into dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars will not constitute an Event of Default under the Notes or the Indenture.
3. Paying Agent and Security Registrar. Initially, U.S. Bank Europe DAC, UK Branch will act as Paying Agent and the Trustee will act as Security Registrar. The Company may change or appoint any Paying Agent or Security Registrar without notice to any Holder. The Company or any of its subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “3.750% Senior Notes due 2029”, initially limited to €[●] in aggregate principal amount. The Company will furnish to any Holder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Uber Technologies, Inc. 1725 3rd Street, San Francisco, California, 94158. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall govern.
Ex. A-6
5. Redemption. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.02 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6. Redemption for Tax Reasons. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.03 of the Supplemental Indenture.
7. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has satisfied and discharged this Security or defeased this Security, the Company shall make a Change of Control Offer to each Holder of this Security to repurchase any and all of such Holder’s Securities at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities to be repurchased (such principal amount to be equal to €100,000 or an integral multiple of €1,000 in excess of €100,000), plus accrued and unpaid interest, if any, on the amount of Securities to be repurchased up to, but excluding, the date of repurchase. Within 30 days following any Change of Control Triggering Event, the Company shall give written notice to the Trustee and each Holder, in accordance with Section 4.01(a)(1) of the Supplemental Indenture, which notice shall govern the terms of the Change of Control Offer.
8. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of €100,000 or an integral multiple of €1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the security registrar) at the office of the security registrar or at the office of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a Holder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day of sending of a notice of redemption of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such sending and (ii) register the transfer of or exchange any Security of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other than the unredeemed portion of any such Security being redeemed in part or not surrendered for repurchase, as the case may be.
9. Persons Deemed Owners. The registered Holder may be treated as its owner for all purposes.
10. Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
Ex. A-7
11. Defaults and Remedies. If one or more Events of Default with respect to the Securities of a series shall have occurred and be continuing, then the principal amount of, and all accrued and unpaid interest on, all of the Securities of such series then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in the Indenture.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, 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.
13. Discharge and Defeasance of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication. This Security shall not be valid until the Trustee manually signs the certificate of authentication attached to the other side of this Security.
15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. Governing Law. The Base Indenture, the Supplemental Indenture and this Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ex. A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
| (Insert assignee’s soc. sec. or tax I.D. no.) |
| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: [●]
| Your Signature: | |
| (Sign exactly as your name appears on the face of this Security) |
Signature Guarantee:
1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, check the box:
o 4.01(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, state the amount: €[●].
Date: [●]
| Your Signature: ____________________________________ | ||
(Sign exactly as your name appears on the other side of the Security) _________________________________________________ Tax I.D. number | ||
| Signature Guarantee: ________________________________ | |
| (Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) | |
1
Exhibit A
Form of 3.750% Senior Notes Due 2029
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date
of |
Amount
of decrease in principal amount of this Global Security |
Amount
of increase in principal amount of this Global Security |
Principal
amount of this Global Security following such decrease or increase |
Signature
of authorized signatory of Trustee or Securities Custodian |
EXHIBIT B
Form of 4.125% Senior Notes Due 2032
Exhibit B
Form of 4.125% Senior Notes Due 2032
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, HAS AN INTEREST HEREIN.
| No. [●] | €[●] |
| CUSIP No. [●] | |
| COMMON CODE [●] | |
| ISIN [●] |
UBER TECHNOLOGIES, INC.
4.125% SENIOR NOTES DUE 2032
UBER TECHNOLOGIES, INC., a Delaware corporation (the “Company,” which term includes any successor entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to USB Nominees (UK) Limited, or its registered assigns, the principal sum of €[●] (as may be increased or decreased as reflected on the Schedule of Increases or Decreases in the Global Security attached hereto) on September 15, 2032 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Date: Annually in arrears on September 15 of each year, commencing September 15, 2027.
Record Date: The close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date.
Each Holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been manually signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Ex. B-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
| UBER TECHNOLOGIES, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page – Global Note]
Ex. B-3
CERTIFICATE OF AUTHENTICATION
This is one of the 4.125% Senior Notes due 2032 issued by Uber Technologies, Inc. of the series designated therein referred to in the within-mentioned Indenture.
Date:
| U.S. BANK TRUST COMPANY, | ||
| NATIONAL ASSOCIATION | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Ex. B-4
Uber Technologies, Inc.
4.125% Senior Notes due 2032
This security is one of a duly authorized series of debt securities of Uber Technologies, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture, dated as of September 9, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated as of September 15, 2026 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Supplemental Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 4.125%. The Company will pay interest annually in arrears on September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay (each such day, an “Interest Payment Date”). Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the Notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date (each, a “regular record date”). Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from and including September 15, 2026, if no interest has been paid on the Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The term “Business Day” as used herein means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates. The rights of holders of beneficial interests of notes to receive the payments of interest on such notes are subject to the applicable procedures of Clearstream and Euroclear.
Ex. B-5
2. Method of Payment. The Company will pay interest and Additional Amounts, if any, on the Securities to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the Change of Control Payment Date, as applicable, is after a regular record date and on or prior to the Interest Payment Date, interest on such Securities will instead be paid upon presentation and surrender of such Securities as provided in the Indenture. All payments of interest and principal, including payments made upon any redemption or Additional Amounts, if any, with respect to the Securities, will be made in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in dollars until the euro is again available to the Company or so used.
The amount payable on any date in euros will be converted into dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars will not constitute an Event of Default under the Notes or the Indenture.
3. Paying Agent and Security Registrar. Initially, U.S. Bank Europe DAC, UK Branch will act as Paying Agent and the Trustee will act as Security Registrar. The Company may change or appoint any Paying Agent or Security Registrar without notice to any Holder. The Company or any of its subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “4.125% Senior Notes due 2032”, initially limited to €[●] in aggregate principal amount. The Company will furnish to any Holder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Uber Technologies, Inc. 1725 3rd Street, San Francisco, California, 94158. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall govern.
Ex. B-6
5. Redemption. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.02 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6. Redemption for Tax Reasons. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.03 of the Supplemental Indenture.
7. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has satisfied and discharged this Security or defeased this Security, the Company shall make a Change of Control Offer to each Holder of this Security to repurchase any and all of such Holder’s Securities at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities to be repurchased (such principal amount to be equal to €100,000 or an integral multiple of €1,000 in excess of €100,000), plus accrued and unpaid interest, if any, on the amount of Securities to be repurchased up to, but excluding, the date of repurchase. Within 30 days following any Change of Control Triggering Event, the Company shall give written notice to the Trustee and each Holder, in accordance with Section 4.01(a)(1) of the Supplemental Indenture, which notice shall govern the terms of the Change of Control Offer.
8. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of €100,000 or an integral multiple of €1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the security registrar) at the office of the security registrar or at the office of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a Holder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day of sending of a notice of redemption of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such sending and (ii) register the transfer of or exchange any Security of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other than the unredeemed portion of any such Security being redeemed in part or not surrendered for repurchase, as the case may be.
9. Persons Deemed Owners. The registered Holder may be treated as its owner for all purposes.
10. Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
Ex. B-7
11. Defaults and Remedies. If one or more Events of Default with respect to the Securities of a series shall have occurred and be continuing, then the principal amount of, and all accrued and unpaid interest on, all of the Securities of such series then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in the Indenture.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, 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.
13. Discharge and Defeasance of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication. This Security shall not be valid until the Trustee manually signs the certificate of authentication attached to the other side of this Security.
15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. Governing Law. The Base Indenture, the Supplemental Indenture and this Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ex. B-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
| (Insert assignee’s soc. sec. or tax I.D. no.) |
| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: [●]
| Your Signature: | |
| (Sign exactly as your name appears on the face of this Security) |
Signature Guarantee:
1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, check the box:
o 4.01(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, state the amount: €[●].
Date: [●]
| Your Signature: ____________________________________ | ||
(Sign exactly as your name appears on the other side of the Security) _________________________________________________ Tax I.D. number | ||
| Signature Guarantee: ________________________________ | |
| (Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) | |
1
Exhibit B
Form of 4.125% Senior Notes Due 2032
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date
of |
Amount
of decrease in principal amount of this Global Security |
Amount
of increase in principal amount of this Global Security |
Principal
amount of this Global Security following such decrease or increase |
Signature of authorized signatory of |
EXHIBIT C
Form of 4.375% Senior Notes Due 2034
Exhibit C
Form of 4.375% Senior Notes Due 2034
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, HAS AN INTEREST HEREIN.
| No. [●] | €[●] |
| CUSIP No. [●] | |
| COMMON CODE [●] | |
| ISIN [●] |
UBER TECHNOLOGIES, INC.
4.375% SENIOR NOTES DUE 2034
UBER TECHNOLOGIES, INC., a Delaware corporation (the “Company,” which term includes any successor entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to USB Nominees (UK) Limited, or its registered assigns, the principal sum of €[●] (as may be increased or decreased as reflected on the Schedule of Increases or Decreases in the Global Security attached hereto) on September 15, 2034 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Date: Annually in arrears on September 15 of each year, commencing September 15, 2027.
Record Date: The close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date.
Each Holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been manually signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Ex. C-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
| UBER TECHNOLOGIES, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page – Global Note]
Ex. C-3
CERTIFICATE OF AUTHENTICATION
This is one of the 4.375% Senior Notes due 2034 issued by Uber Technologies, Inc. of the series designated therein referred to in the within-mentioned Indenture.
Date:
| U.S. BANK TRUST COMPANY, | ||
| NATIONAL ASSOCIATION | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Ex. C-4
Uber Technologies, Inc.
4.375% Senior Notes due 2034
This security is one of a duly authorized series of debt securities of Uber Technologies, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture, dated as of September 9, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated as of September 15, 2026 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Supplemental Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 4.375%. The Company will pay interest annually in arrears on September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay (each such day, an “Interest Payment Date”). Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the Notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date (each, a “regular record date”). Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from and including September 15, 2026, if no interest has been paid on the Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The term “Business Day” as used herein means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates. The rights of holders of beneficial interests of notes to receive the payments of interest on such notes are subject to the applicable procedures of Clearstream and Euroclear.
Ex. C-5
2. Method of Payment. The Company will pay interest and Additional Amounts, if any, on the Securities to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the Change of Control Payment Date, as applicable, is after a regular record date and on or prior to the Interest Payment Date, interest on such Securities will instead be paid upon presentation and surrender of such Securities as provided in the Indenture. All payments of interest and principal, including payments made upon any redemption or Additional Amounts, if any, with respect to the Securities, will be made in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in dollars until the euro is again available to the Company or so used.
The amount payable on any date in euros will be converted into dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars will not constitute an Event of Default under the Notes or the Indenture.
3. Paying Agent and Security Registrar. Initially, U.S. Bank Europe DAC, UK Branch will act as Paying Agent and the Trustee will act as Security Registrar. The Company may change or appoint any Paying Agent or Security Registrar without notice to any Holder. The Company or any of its subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “4.375% Senior Notes due 2034”, initially limited to €[●] in aggregate principal amount. The Company will furnish to any Holder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Uber Technologies, Inc. 1725 3rd Street, San Francisco, California, 94158. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall govern.
Ex. C-6
5. Redemption. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.02 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6. Redemption for Tax Reasons. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.03 of the Supplemental Indenture.
7. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has satisfied and discharged this Security or defeased this Security, the Company shall make a Change of Control Offer to each Holder of this Security to repurchase any and all of such Holder’s Securities at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities to be repurchased (such principal amount to be equal to €100,000 or an integral multiple of €1,000 in excess of €100,000), plus accrued and unpaid interest, if any, on the amount of Securities to be repurchased up to, but excluding, the date of repurchase. Within 30 days following any Change of Control Triggering Event, the Company shall give written notice to the Trustee and each Holder, in accordance with Section 4.01(a)(1) of the Supplemental Indenture, which notice shall govern the terms of the Change of Control Offer.
8. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of €100,000 or an integral multiple of €1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the security registrar) at the office of the security registrar or at the office of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a Holder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day of sending of a notice of redemption of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such sending and (ii) register the transfer of or exchange any Security of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other than the unredeemed portion of any such Security being redeemed in part or not surrendered for repurchase, as the case may be.
9. Persons Deemed Owners. The registered Holder may be treated as its owner for all purposes.
Ex. C-7
10. Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. Defaults and Remedies. If one or more Events of Default with respect to the Securities of a series shall have occurred and be continuing, then the principal amount of, and all accrued and unpaid interest on, all of the Securities of such series then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in the Indenture.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, 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.
13. Discharge and Defeasance of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication. This Security shall not be valid until the Trustee manually signs the certificate of authentication attached to the other side of this Security.
15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. Governing Law. The Base Indenture, the Supplemental Indenture and this Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ex. C-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
| (Insert assignee’s soc. sec. or tax I.D. no.) |
| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: [●]
| Your Signature: | |
| (Sign exactly as your name appears on the face of this Security) |
Signature Guarantee:
1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, check the box:
o 4.01(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, state the amount: €[●].
Date: [●]
| Your Signature: ____________________________________ | ||
(Sign exactly as your name appears on the other side of the Security) _________________________________________________ Tax I.D. number | ||
| Signature Guarantee: ________________________________ | |
| (Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) | |
1
Exhibit C
Form of 4.375% Senior Notes Due 2034
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date
of |
Amount
of decrease in principal amount of this Global Security |
Amount
of increase in principal amount of this Global Security |
Principal
amount of this Global Security following such decrease or increase |
Signature
of authorized signatory of Trustee or Securities Custodian |
EXHIBIT D
Form of 4.750% Senior Notes Due 2038
Exhibit D
Form of 4.750% Senior Notes Due 2038
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, HAS AN INTEREST HEREIN.
| No. [●] | €[●] |
| CUSIP No. [●] | |
| COMMON CODE [●] | |
| ISIN [●] |
UBER TECHNOLOGIES, INC.
4.750% SENIOR NOTES DUE 2038
UBER TECHNOLOGIES, INC., a Delaware corporation (the “Company,” which term includes any successor entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to USB Nominees (UK) Limited, or its registered assigns, the principal sum of €[●] (as may be increased or decreased as reflected on the Schedule of Increases or Decreases in the Global Security attached hereto) on September 15, 2038 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Date: Annually in arrears on September 15 of each year, commencing September 15, 2027.
Record Date: The close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date.
Each Holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been manually signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Ex. D-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
| UBER TECHNOLOGIES, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page – Global Note]
Ex. D-3
CERTIFICATE OF AUTHENTICATION
This is one of the 4.750% Senior Notes due 2038 issued by Uber Technologies, Inc. of the series designated therein referred to in the within-mentioned Indenture.
Date:
| U.S. BANK TRUST COMPANY, | ||
| NATIONAL ASSOCIATION | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Ex. D-4
Uber Technologies, Inc.
4.750% Senior Notes due 2038
This security is one of a duly authorized series of debt securities of Uber Technologies, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture, dated as of September 9, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated as of September 15, 2026 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Supplemental Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 4.750%. The Company will pay interest annually in arrears on September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay (each such day, an “Interest Payment Date”). Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the Notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date (each, a “regular record date”). Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from and including September 15, 2026, if no interest has been paid on the Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The term “Business Day” as used herein means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates. The rights of holders of beneficial interests of notes to receive the payments of interest on such notes are subject to the applicable procedures of Clearstream and Euroclear.
Ex. D-5
2. Method of Payment. The Company will pay interest and Additional Amounts, if any, on the Securities to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the Change of Control Payment Date, as applicable, is after a regular record date and on or prior to the Interest Payment Date, interest on such Securities will instead be paid upon presentation and surrender of such Securities as provided in the Indenture. All payments of interest and principal, including payments made upon any redemption or Additional Amounts, if any, with respect to the Securities, will be made in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in dollars until the euro is again available to the Company or so used.
The amount payable on any date in euros will be converted into dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars will not constitute an Event of Default under the Notes or the Indenture.
3. Paying Agent and Security Registrar. Initially, U.S. Bank Europe DAC, UK Branch will act as Paying Agent and the Trustee will act as Security Registrar. The Company may change or appoint any Paying Agent or Security Registrar without notice to any Holder. The Company or any of its subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “4.750% Senior Notes due 2038”, initially limited to €[●] in aggregate principal amount. The Company will furnish to any Holder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Uber Technologies, Inc. 1725 3rd Street, San Francisco, California, 94158. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall govern.
Ex. D-6
5. Redemption. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.02 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6. Redemption for Tax Reasons. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.03 of the Supplemental Indenture.
7. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has satisfied and discharged this Security or defeased this Security, the Company shall make a Change of Control Offer to each Holder of this Security to repurchase any and all of such Holder’s Securities at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities to be repurchased (such principal amount to be equal to €100,000 or an integral multiple of €1,000 in excess of €100,000), plus accrued and unpaid interest, if any, on the amount of Securities to be repurchased up to, but excluding, the date of repurchase. Within 30 days following any Change of Control Triggering Event, the Company shall give written notice to the Trustee and each Holder, in accordance with Section 4.01(a)(1) of the Supplemental Indenture, which notice shall govern the terms of the Change of Control Offer.
8. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of €100,000 or an integral multiple of €1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the security registrar) at the office of the security registrar or at the office of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a Holder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day of sending of a notice of redemption of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such sending and (ii) register the transfer of or exchange any Security of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other than the unredeemed portion of any such Security being redeemed in part or not surrendered for repurchase, as the case may be.
9. Persons Deemed Owners. The registered Holder may be treated as its owner for all purposes.
Ex. D-7
10. Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. Defaults and Remedies. If one or more Events of Default with respect to the Securities of a series shall have occurred and be continuing, then the principal amount of, and all accrued and unpaid interest on, all of the Securities of such series then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in the Indenture.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, 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.
13. Discharge and Defeasance of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication. This Security shall not be valid until the Trustee manually signs the certificate of authentication attached to the other side of this Security.
15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. Governing Law. The Base Indenture, the Supplemental Indenture and this Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ex. D-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
| (Insert assignee’s soc. sec. or tax I.D. no.) |
| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: [●]
| Your Signature: | |
| (Sign exactly as your name appears on the face of this Security) |
Signature Guarantee:
1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, check the box:
o 4.01(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, state the amount: €[●].
Date: [●]
| Your Signature: ____________________________________ | ||
(Sign exactly as your name appears on the other side of the Security) _________________________________________________ Tax I.D. number | ||
| Signature Guarantee: ________________________________ | |
| (Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) | |
1
Exhibit D
Form of 4.750% Senior Notes Due 2038
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date
of |
Amount
of decrease in principal amount of this Global Security |
Amount
of increase in principal amount of this Global Security |
Principal
amount of this Global Security following such decrease or increase |
Signature
of authorized signatory of Trustee or Securities Custodian |
EXHIBIT E
Form of 5.250% Senior Notes Due 2046
Exhibit E
Form of 5.250% Senior Notes Due 2046
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) OR CLEARSTREAM BANKING, S.A., A SOCIÉTÉ ANONYME (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY THEREOF, HAS AN INTEREST HEREIN.
| No. [●] | €[●] |
| CUSIP No. [●] | |
| COMMON CODE [●] | |
| ISIN [●] |
UBER TECHNOLOGIES, INC.
5.250% SENIOR NOTES DUE 2046
UBER TECHNOLOGIES, INC., a Delaware corporation (the “Company,” which term includes any successor entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to USB Nominees (UK) Limited, or its registered assigns, the principal sum of €[●] (as may be increased or decreased as reflected on the Schedule of Increases or Decreases in the Global Security attached hereto) on September 15, 2046 and to pay interest thereon, as provided in the Indenture referred to below, until the principal and all accrued and unpaid interest are paid or duly provided for.
Interest Payment Date: Annually in arrears on September 15 of each year, commencing September 15, 2027.
Record Date: The close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date.
Each Holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder of this Security hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such Holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been manually signed by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
Ex. E-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
| UBER TECHNOLOGIES, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page – Global Note]
Ex. E-3
CERTIFICATE OF AUTHENTICATION
This is one of the 5.250% Senior Notes due 2046 issued by Uber Technologies, Inc. of the series designated therein referred to in the within-mentioned Indenture.
Date:
| U.S. BANK TRUST COMPANY, | ||
| NATIONAL ASSOCIATION | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Ex. E-4
Uber Technologies, Inc.
5.250% Senior Notes due 2046
This security is one of a duly authorized series of debt securities of Uber Technologies, Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture, dated as of September 9, 2024 (the “Base Indenture”), duly executed and delivered by and between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated as of September 15, 2026 (the “Supplemental Indenture”), by and between the Company and the Trustee. The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Base Indenture. This security is one of the series designated on the face hereof (individually, a “Security,” and collectively, the “Securities”), and reference is hereby made to the Indenture for a description of the rights, limitations of rights, obligations, duties, immunities and indemnities of the Trustee, the Company and the holders of the Securities (the “Holders”). Capitalized terms used herein and not otherwise defined shall have the meanings given them in the Base Indenture or the Supplemental Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 5.250%. The Company will pay interest annually in arrears on September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day and Holders will not be entitled to any further interest or other payment as a result of any such delay (each such day, an “Interest Payment Date”). Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the day (whether or not a Business Day) immediately preceding the relevant Interest Payment Date, or, if the Notes are represented by one or more Global Notes, the close of business on the clearing system business day (for this purpose, a day on which Clearstream and Euroclear are open for business) immediately preceding the relevant Interest Payment Date (each, a “regular record date”). Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from and including September 15, 2026, if no interest has been paid on the Notes) to, but excluding, the next scheduled Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA), as defined in the rulebook of the International Capital Market Association.
The term “Business Day” as used herein means any day, other than a Saturday or Sunday, (1) which is not a day on which banking institutions in the City of New York or the City of London are authorized or required by law or executive order to close and (2) on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the T2 system), or any successor thereto, operates. The rights of holders of beneficial interests of notes to receive the payments of interest on such notes are subject to the applicable procedures of Clearstream and Euroclear.
Ex. E-5
2. Method of Payment. The Company will pay interest and Additional Amounts, if any, on the Securities to the persons in whose name such Securities are registered at the close of business on the regular record date referred to on the facing page of this Security for such interest installment. In the event that the Securities or a portion thereof are called for redemption or there is a Change of Control Offer, and the Optional Redemption Date or the Change of Control Payment Date, as applicable, is after a regular record date and on or prior to the Interest Payment Date, interest on such Securities will instead be paid upon presentation and surrender of such Securities as provided in the Indenture. All payments of interest and principal, including payments made upon any redemption or Additional Amounts, if any, with respect to the Securities, will be made in euros. If the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes will be made in dollars until the euro is again available to the Company or so used.
The amount payable on any date in euros will be converted into dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent dollar/euro exchange rate published in The Wall Street Journal on or prior to the second Business Day prior to the relevant payment date. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. Any payment in respect of any Note so made in dollars will not constitute an Event of Default under the Notes or the Indenture.
3. Paying Agent and Security Registrar. Initially, U.S. Bank Europe DAC, UK Branch will act as Paying Agent and the Trustee will act as Security Registrar. The Company may change or appoint any Paying Agent or Security Registrar without notice to any Holder. The Company or any of its subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in effect on the date the Indenture is qualified. The Securities are subject to all such terms, and Holders are referred to the Indenture and TIA for a statement of such terms. The Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the “5.250% Senior Notes due 2046”, initially limited to €[●] in aggregate principal amount. The Company will furnish to any Holder upon written request and without charge a copy of the Base Indenture and the Supplemental Indenture. Requests may be made to: Uber Technologies, Inc. 1725 3rd Street, San Francisco, California, 94158. In the event of any conflict between the terms of the Indenture and this Note, the terms of the Indenture shall govern.
Ex. E-6
5. Redemption. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.02 of the Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the Securities.
6. Redemption for Tax Reasons. The Securities may be redeemed at the option of the Company prior to the maturity date, as provided in Section 3.03 of the Supplemental Indenture.
7. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, unless the Company has exercised its right to redeem this Security in full or the Company has satisfied and discharged this Security or defeased this Security, the Company shall make a Change of Control Offer to each Holder of this Security to repurchase any and all of such Holder’s Securities at a repurchase price in cash equal to 101% of the aggregate principal amount of Securities to be repurchased (such principal amount to be equal to €100,000 or an integral multiple of €1,000 in excess of €100,000), plus accrued and unpaid interest, if any, on the amount of Securities to be repurchased up to, but excluding, the date of repurchase. Within 30 days following any Change of Control Triggering Event, the Company shall give written notice to the Trustee and each Holder, in accordance with Section 4.01(a)(1) of the Supplemental Indenture, which notice shall govern the terms of the Change of Control Offer.
8. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of €100,000 or an integral multiple of €1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the security registrar) at the office of the security registrar or at the office of any transfer agent designated by the Company for such purpose. No service charge will be made for any registration of transfer or exchange, but a Holder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company will not be required to: (i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day of sending of a notice of redemption of less than all of the outstanding Securities of the same series and ending at the close of business on the day of such sending and (ii) register the transfer of or exchange any Security of any series or portions thereof called for redemption or surrendered for repurchase, but not validly withdrawn, other than the unredeemed portion of any such Security being redeemed in part or not surrendered for repurchase, as the case may be.
9. Persons Deemed Owners. The registered Holder may be treated as its owner for all purposes.
Ex. E-7
10. Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults and Events of Default under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
11. Defaults and Remedies. If one or more Events of Default with respect to the Securities of a series shall have occurred and be continuing, then the principal amount of, and all accrued and unpaid interest on, all of the Securities of such series then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in the Indenture.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, 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.
13. Discharge and Defeasance of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
14. Authentication. This Security shall not be valid until the Trustee manually signs the certificate of authentication attached to the other side of this Security.
15. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. Governing Law. The Base Indenture, the Supplemental Indenture and this Security shall be governed by, and construed in accordance with, the internal laws of the State of New York, except to the extent that the Trust Indenture Act is applicable.
Ex. E-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
| (Insert assignee’s soc. sec. or tax I.D. no.) |
| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: [●]
| Your Signature: | |
| (Sign exactly as your name appears on the face of this Security) |
Signature Guarantee:
1
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, check the box:
o 4.01(a) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to Section 4.01(a) of the Supplemental Indenture, state the amount: €[●].
Date: [●]
| Your Signature: ____________________________________ | ||
(Sign exactly as your name appears on the other side of the Security) _________________________________________________ Tax I.D. number | ||
| Signature Guarantee: ________________________________ | |
| (Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) | |
1
Exhibit E
Form of 5.250% Senior Notes Due 2046
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date
of |
Amount
of decrease in principal amount of this Global Security |
Amount
of increase in principal amount of this Global Security |
Principal
amount of this Global Security following such decrease or increase |
Signature
of authorized signatory of Trustee or Securities Custodian |
Exhibit 5.1
Eric Blanchard
T: +1 617 937 2445
eblanchard@cooley.com
September 15, 2026
Uber Technologies, Inc.
1725 3rd Street
San Francisco, California 94158
Ladies and Gentlemen:
We have acted as counsel to Uber Technologies, Inc., a Delaware corporation, (the “Company”) in connection with the sale by the Company of €750,000,000 aggregate principal amount of the Company’s 3.750% Senior Notes due 2029, €1,000,000,000 aggregate principal amount of the Company’s 4.125% Senior Notes due 2032, €1,000,000,000 aggregate principal amount of the Company’s 4.375% Senior Notes due 2034, €1,000,000,000 aggregate principal amount of the Company’s 4.750% Senior Notes due 2038, and €750,000,000 aggregate principal amount of the Company’s 5.250% Senior Notes due 2046 (together the “Notes”) to be issued pursuant to that certain Underwriting Agreement, dated September 9, 2026 (the “Agreement”), by and among Goldman Sachs & Co. LLC, Morgan Stanley & Co. International plc, Deutsche Bank AG, London Branch, Merrill Lynch International and BNP PARIBAS, as representatives of the several underwriters (the “Underwriters”), and the Company and a Registration Statement on Form S-3 (File No. 333-293483) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), the prospectus included in the Registration Statement (the “Base Prospectus”), and the prospectus supplement dated September 9, 2026, filed with the Commission pursuant to Rule 424(b) under the Securities Act (together with the Base Prospectus, the “Prospectus”). The Notes are being issued pursuant to the Indenture, dated September 9, 2024 (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated September 15, 2026, between the Company and the Trustee (together with the Base Indenture, the “Indenture”).
In connection with this opinion, we have examined and relied upon (i) the representations and warranties as to factual matters and have assumed performance of the covenants contained in and made pursuant to the Agreement and the Indenture by the various parties thereto, (ii) the Registration Statement and the Prospectus, (iii) the Indenture and the Notes, (iv) the Company’s certificate of incorporation and bylaws, each as currently in effect, and (v) such other records, documents, certificates, opinions, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware and, as to the Notes constituting binding obligations of the Company, the laws of the State of New York. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
In rendering this opinion, we have assumed, without investigation: the genuineness of all signatures; the authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents (except the due authorization, execution and delivery by the Company of the Indenture and the Notes); that all individuals executing and delivering documents had the legal capacity to so execute and deliver; that the Indenture constitutes a valid and binding obligation, enforceable in accordance with its terms, against all parties thereto (except that such assumption is not made with respect to the Company); and that there are no extrinsic agreements or understandings among the parties to the Indenture or the Notes that would modify or interpret the terms thereof or the rights or obligations of the parties thereunder.
Cooley LLP 500 Boylston Street 14th Floor Boston, MA 02116
t: (617) 937 2300 f: (617) 937 2400 cooley.com
|
Uber Technologies, Inc. September 15, 2026 Page Two |
Our opinion is subject to the following additional qualifications and limitations:
(i) Our opinion is subject to, and may be limited by, (a) applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance, debtor and creditor, and similar laws which relate to or affect creditors’ rights generally, (b) general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing) regardless of whether considered in a proceeding in equity or at law and possible judicial action giving effect to foreign governmental actions or foreign laws affecting creditors’ rights, (c) requirements that a claim with respect to any Notes payable in foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (d) governmental authority to limit, delay or prohibit the making of payments outside the United States or payments in which designated foreign countries, entities or nationals have an interest.
(ii) Our opinion is subject to the qualification that (a) the enforceability of provisions for indemnification or limitations on liability may be limited by applicable law or public policy considerations, and (b) the availability of specific performance, an injunction or other equitable remedies is subject to the discretion of the court before which the request is brought.
(iii) We express no opinion as to any provision of the Notes or the Indenture that: (a) relates to the subject matter jurisdiction of any federal court of the United States of America or any federal appellate court to adjudicate any controversy related to the Notes or the Indenture; (b) contains a waiver of any objection based on inappropriate venue or forum non conveniens in a federal court of the United States of America; (c) relates to a right of setoff; (d) provides for liquidated damages, default interest, late charges, monetary penalties, prepayment or make-whole payments or other economic remedies if such remedy would be unreasonable, constitute a penalty or be otherwise contrary to public policy; (e) relates to advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitations, trial by jury, or procedural rights; (f) restricts non-written modifications and waivers; (g) provides for the payment of legal and other professional fees where such payment is contrary to law or public policy; (h) provides that provisions of the Notes or Indenture are severable to the extent an essential part of the agreed exchange is determined to be invalid and unenforceable; (i) provides that a party’s waiver of any breach of any provision of the Notes or the Indenture is not to be construed as a waiver by such party of any prior breach of such provision or of any other provision of the Notes or the Indenture; (j) provides any party the right to accelerate obligations or exercise remedies without notice; (k) purports to appoint one party as trustee for an adverse party or provides for the appointment of a receiver; (l) specifies that the liability of any indemnitor shall not be affected by actions or failures to act on the part of the beneficiaries of the indemnity or by amendments or waivers of provisions of documents creating and governing the indemnified obligations if such actions, failures to act, amendments or waivers change the essential nature of the terms and conditions of the indemnified obligations so that, in effect, a new contract has arisen between the recipient of the indemnity and the primary obligor on whose behalf the indemnity was issued; or (m) provides for a right or remedy which may be held to be arbitrary or unconscionable, a penalty or otherwise in violation of public policy. In connection with any provision of the Notes or the Indenture that contains a waiver of an inconvenient forum, we note that under N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial.
Cooley LLP 500 Boylston Street 14th Floor Boston, MA 02116
t: (617) 937 2300 f: (617) 937 2400 cooley.com
|
Uber Technologies, Inc. September 15, 2026 Page Three |
(iv) We express no opinion as to whether a state court outside of the State of New York or a federal court of the United States would give effect to the choice of New York law or forum provided for in the Notes and the Indenture.
On the basis of the foregoing, in reliance thereon, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that when duly executed and delivered by the Company, authenticated by the Trustee in accordance with the terms of the Indenture and issued and delivered to the Underwriters against payment therefor in accordance with the terms of the Agreement, the Notes will be binding obligations of the Company.
This opinion is limited to the matters expressly set forth in this letter, and no opinion has been or should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof, and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to a Current Report of the Company on Form 8-K. In giving such consents, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission thereunder.
Very truly yours,
Cooley LLP
| By: | /s/ Eric Blanchard | ||
| Eric Blanchard |
Cooley LLP 500 Boylston Street 14th Floor Boston, MA 02116
t: (617) 937 2300 f: (617) 937 2400 cooley.com