Zimmer Biomet Holdings, Inc 8-K, filed Nov 12, 2026
Zimmer Biomet Holdings, Inc. (ZBH)
About this 8-K
Zimmer Biomet Holdings, Inc filed this 8-K on November 12, 2026, reporting on events of November 5, 2026.
Zimmer Biomet Holdings, Inc. issued €500.0 million of 4.375% notes due 2033 and $500.0 million of 5.850% notes due 2036 on November 12, 2026. AI summary
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
On November 5, 2026, Zimmer Biomet Holdings, Inc. (the “Company”) entered into an underwriting agreement (the “EUR Underwriting Agreement”) with Barclays Bank PLC, Citigroup Global Markets Limited, HSBC Bank plc, Morgan Stanley & Co. International plc and RBC Europe Limited, as representatives of the underwriters named therein (collectively, the “EUR Underwriters”), in connection with the public offering of €500.0 million aggregate principal amount of the Company’s 4.375% notes due 2033 (the “EUR Notes”).
Also on November 5, 2026, the Company entered into an underwriting agreement (the “USD Underwriting Agreement” and, together with the EUR Underwriting Agreement, the “Underwriting Agreements”) with Barclays Capital Inc., BofA Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC and SMBC Nikko Securities America, Inc., as representatives of the underwriters named therein (collectively, the “USD Underwriters” and, together with the EUR Underwriters, the “Underwriters”), in connection with the public offering of $500.0 million aggregate principal amount of the Company’s 5.850% notes due 2036 (the “USD Notes” and, together with the EUR Notes, the “Notes”).
Neither the offering of the EUR Notes nor the offering of the USD Notes was conditioned upon the completion of the other. The issuance of the Notes was completed on November 12, 2026.
Each Underwriting Agreement contains representations and warranties, covenants and conditions that are customary for transactions of this type. In addition, the Company has agreed to indemnify the applicable Underwriters against certain liabilities on customary terms.
The Underwriters and their affiliates are full service financial institutions that have engaged in, and may in the future engage in, commercial banking, financial advisory, investment banking, lending and other commercial dealings in the ordinary course of their business with the Company or its affiliates, including participating as lenders under the Company’s credit facilities, for which they have received, and may in the future receive, customary fees and commissions. In addition, U.S. Bancorp Investments, Inc., one of the Underwriters, is an affiliate of the registrar, transfer agent and authenticating agent for the EUR Notes and of the paying agent and common depositary for the EUR Notes.
In addition, certain of the Underwriters or their affiliates may be holders of the Company’s 2.425% notes due 2026 (the “2026 Notes”) and/or the Company’s 4.700% notes due 2027 (the “2027 Notes”), and would receive their proportionate share of the net proceeds from the offerings of the Notes to the extent they hold 2026 Notes or 2027 Notes at such time and such proceeds are used to repay a portion of the 2026 Notes or the 2027 Notes, respectively.
The EUR Notes were issued pursuant to the Thirteenth Supplemental Indenture dated as of November 12, 2026 (the “EUR Supplemental Indenture”), and the USD Notes were issued pursuant to the Fourteenth Supplemental Indenture dated as of November 12, 2026 (the “USD Supplemental Indenture” and, together with the EUR Supplemental Indenture, the “Supplemental Indentures”), in each case to the Company’s Indenture (the “Base Indenture”) dated as of November 17, 2009, between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee. Pursuant to an Agency Agreement dated as of November 12, 2026 (the “Agency Agreement”) relating to the EUR Notes, the Company has appointed U.S. Bank Europe DAC, UK Branch, to act as paying agent for the EUR Notes and U.S. Bank Trust Company, National Association to act as transfer agent and registrar for the EUR Notes. For a description of the material terms of the Supplemental Indentures and the Notes, see the information set forth below under Item 2.03, which is incorporated into this Item 1.01.
The offerings of the Notes were made pursuant to the Registration Statement on Form S-3 (Registration No. 333-285227), the prospectus dated February 25, 2025, and the related prospectus supplements, each dated November 5, 2026. Copies of the EUR Underwriting Agreement, the USD Underwriting Agreement, the Base Indenture, the EUR Supplemental Indenture, the USD Supplemental Indenture and the Agency Agreement are filed or incorporated by reference as Exhibits 1.1, 1.2, 4.1, 4.2, 4.4 and 4.6 hereto, respectively, and are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth above under Item 1.01 is incorporated into this Item 2.03.
Terms Applicable to EUR Notes Only
The EUR Notes bear interest at a rate of 4.375% per annum, which interest will be payable annually in arrears on November 12 of each year, commencing on November 12, 2027. Interest will be paid to the holders of record of the EUR Notes at the close of business on (a) in the case of EUR Notes represented by a global note, the clearing system business day (for this purpose, a day on which Clearstream and Euroclear settle payments in euro) immediately preceding the relevant interest payment date and (b) in all other cases, 15 calendar days prior to the relevant interest payment date (whether or not a business day). The EUR Notes will mature on November 12, 2033.
Principal (including any payments made upon any redemption or repurchase of the EUR Notes), premium, if any, and interest payments in respect of the EUR Notes will be payable in euro, subject to certain exceptions set forth in the EUR Supplemental Indenture. In addition, the Company will, subject to certain exceptions and limitations, pay additional amounts on the EUR Notes as are necessary in order that the net payment of the principal of, and premium, if any, and interest on, the EUR Notes to a holder who is not a United States person, after any required withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges imposed or levied by the United States, any political subdivision thereof or any taxing authority thereof or therein, will not be less than the amount provided in the EUR Notes to be then due and payable.
Prior to August 12, 2033 (the “EUR Par Call Date”), the Company may redeem the EUR Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the EUR Notes matured on the EUR Par Call Date) on an annual basis (ACTUAL/ACTUAL (ICMA)) at the Comparable Government Bond Rate (as defined in the EUR Supplemental Indenture), plus 20 basis points less (b) interest accrued to the date of redemption; and
(2) 100% of the principal amount of the EUR Notes to be redeemed;
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the EUR Par Call Date, the Company may redeem the EUR 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 EUR Notes being redeemed plus accrued and unpaid interest thereon to the redemption date.
The Company may also redeem the EUR Notes, at its option, in whole but not in part, at a redemption price equal to 100% of the principal amount of the EUR Notes to be redeemed, plus accrued and unpaid interest on the EUR Notes being redeemed to, but excluding, the redemption date, in the event that certain developments affecting United States taxation would cause the Company to pay additional amounts with respect to the EUR Notes, as described in the EUR Supplemental Indenture.
The Company has agreed to use reasonable efforts to list the EUR Notes on the New York Stock Exchange.
Terms Applicable to USD Notes Only
The USD Notes bear interest at a rate of 5.850% per annum, which interest will be payable semi-annually in arrears on May 12 and November 12 of each year, commencing on May 12, 2027. Interest will be paid to the holders of record of the USD Notes at the close of business (whether or not a business day) on the April 27 and October 28, respectively, immediately preceding the related interest payment date. The USD Notes will mature on November 12, 2036.
Prior to August 12, 2036 (the “USD Par Call Date”), the Company may redeem the USD Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the USD Notes matured on the USD Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the USD Supplemental Indenture), plus 20 basis points less (b) interest accrued to the date of redemption; and
(2) 100% of the principal amount of the USD Notes to be redeemed;
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the USD Par Call Date, the Company may redeem the USD 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 USD Notes being redeemed plus accrued and unpaid interest thereon to the redemption date.
Terms Applicable to Both EUR Notes and USD Notes
If a Change of Control Repurchase Event (as defined in the applicable Supplemental Indenture) occurs with respect to either series of Notes, unless the Company has exercised its right to redeem the Notes of such series pursuant to the Base Indenture as supplemented by the applicable Supplemental Indenture, the Company will make an offer to each holder of the Notes of such series to repurchase all or any part of that holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase.
The Base Indenture and the Supplemental Indentures provide for customary events of default, including, among other things, nonpayment, failure to comply with the other covenants, warranties and agreements in the Base Indenture and the applicable Supplemental Indenture for a period of 60 days after notice thereof, and certain events of bankruptcy, insolvency and reorganization.
The description set forth above is qualified in its entirety by reference to the full text of the Base Indenture, the EUR Supplemental Indenture (including the form of EUR Notes attached thereto), the USD Supplemental Indenture (including the form of USD Notes attached thereto) and the Agency Agreement, which are filed or incorporated by reference as Exhibits 4.1, 4.2, 4.4 and 4.6 hereto, respectively, and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: November 12, 2026
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | /s/ Chad F. Phipps | |
| Name: | Chad F. Phipps | |
| Title: | Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary | |
Exhibit 1.1
Zimmer Biomet Holdings, Inc.
€500,000,000 4.375% Notes due 2033
Underwriting Agreement
New York, New York
November 5, 2026
Barclays Bank PLC
Citigroup Global Markets Limited
HSBC Bank plc
Morgan Stanley & Co. International plc
RBC Europe Limited
As representatives of the several
underwriters named in Schedule I hereto
c/o Barclays Bank PLC
1 Churchill Place
London E14 5HP
United Kingdom
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
HSBC Bank plc
8 Canada Square
London E14 5HQ
United Kingdom
Morgan Stanley & Co. International plc
25 Cabot Square
Canary Wharf
London E14 4QA
United Kingdom
RBC Europe Limited
100 Bishopsgate
London EC2N 4AA
United Kingdom
Ladies and Gentlemen:
Zimmer Biomet Holdings, Inc., a corporation organized under the laws of the State of Delaware (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, €500,000,000 aggregate principal amount of its 4.375% Notes due 2033 (the “Securities”), to be issued under an indenture (as supplemented prior to the date hereof, the “Base Indenture”) dated as of November 17, 2009, between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the thirteenth supplemental indenture to be dated as of November 12, 2026 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) between the Company and the Trustee. In connection with the issuance and sale of the Securities, the Company will enter into an Agency Agreement to be dated as of November 12, 2026 (the “Agency Agreement”) between the Company and U.S. Bank Europe DAC, UK Branch, as paying agent (the “Paying Agent”), U.S. Bank Trust Company, National Association, as transfer agent and registrar, and the Trustee.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405, on Form S-3 (Registration No. 333-285227) including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Applicable Time, became effective upon filing and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or, to the Company’s knowledge, threatened by the Commission. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As
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filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Applicable Time or, to the extent not completed at the Applicable Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Applicable Time, will be included or made therein. The Registration Statement, at the Applicable Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Applicable Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; the Indenture complies in all material respects with the applicable requirements of the Trust Indenture Act and the rules promulgated thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification on Form T-1 under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(a) hereof.
(c) As of the Applicable Time, (i) the Disclosure Package and (ii) each electronic road show, when taken together as a whole with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(a) hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed
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pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163 and (iv) at the Applicable Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a Well-Known Seasoned Issuer. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereof does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(a) hereof.
(g) The documents incorporated by reference in the Disclosure Package and the Final Prospectus, when they become effective or when they were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement and the Final Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder then in effect and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) Since the respective dates as of which information is given in the Disclosure Package and the Final Prospectus, there has not been (i) any material change in the capital stock (other than changes pursuant to open market or accelerated repurchase plans,
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dividend reinvestment or director or employee stock purchase or benefit plans) or long-term debt of the Company and its subsidiaries considered as a whole or (ii) any material adverse change, or any development known to the Company involving a prospective material adverse change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Final Prospectus.
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; the Company is duly qualified as a foreign corporation to transact business and, to the extent such concept is applicable, is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not have a material adverse effect on the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole (a “Material Adverse Effect”).
(j) Each of the Company’s subsidiaries that qualifies as a “significant subsidiary” under Section 1-02(w) of Regulation S-X (each, a “Significant Subsidiary” and, collectively, the “Significant Subsidiaries”), has been duly organized and is validly existing and, to the extent such concept is applicable, is in good standing under the laws of the jurisdiction of its organization, with power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; each Significant Subsidiary is duly qualified to transact business and, to the extent such concept is applicable, is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Disclosure Package and the Final Prospectus, all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law) is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(k) The Company has an outstanding capital stock as set forth in the Disclosure Package and the Final Prospectus (except for subsequent issuances pursuant to dividend reinvestment or director or employee stock purchase or benefit plans or pursuant to the exercise of options and except for repurchases in connection with open market or accelerated repurchase plans), and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(l) This underwriting agreement (this “Agreement”) has been duly authorized, executed and delivered by the Company.
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(m) The Securities have been duly authorized, and, when issued and delivered pursuant to this Agreement, the Securities will have been duly executed, issued and delivered and (assuming the due authentication thereof by the Trustee) will constitute valid and legally binding obligations of the Company, will be entitled to the benefits provided by the Indenture and will be enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(n) The Base Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; the Supplemental Indenture has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and will constitute a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; the Base Indenture has been duly qualified under the Trust Indenture Act; and the Indenture will conform in all material respects to the requirements of the Trust Indenture Act.
(o) The Indenture and the Securities will conform, in all material respects, to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(p) The statements in each of the Disclosure Package and the Final Prospectus under the captions “Description of the Notes” and “Description of Debt Securities We May Offer,” in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
(q) The issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its Significant Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, which would reasonably be expected to have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture or this Agreement; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or the Restated Bylaws of the Company; nor will such action result in a violation of any statute or any order, rule or regulation of any
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court or governmental agency or body in the United States having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties.
(r) No consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body in the United States having jurisdiction over the Company is required for the issuance and sale of the Securities or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except such consents, approvals, authorizations, orders, registrations or qualifications as may be required by the listing rules of the New York Stock Exchange, the securities or blue sky laws of the various states, the Act, the Trust Indenture Act and the securities laws of any jurisdiction outside the United States in which the Securities are offered.
(s) Except as set forth in the Disclosure Package and the Final Prospectus, 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 or its or their property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect.
(t) The accountants who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package and the Final Prospectus were independent registered public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder, at the time of the applicable audit.
(u) Except as set forth in the Disclosure Package and the Final Prospectus, the consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form in all material respects with the applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein).
(v) 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 the Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(w) The Company has filed all tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
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Package and the Final Prospectus (exclusive of any supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(x) No labor problem or dispute with the employees of the Company or any of its subsidiaries that could have a Material Adverse Effect exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers that could have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(y) Except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the Company and each of its subsidiaries are insured by responsible and reputable insurers against such losses and risks and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as are prudent and customary in the case of entities of established reputations engaged in the same or similar businesses in which they are engaged and similarly situated; provided that such insurance is available in the relevant market; all policies of insurance insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(z) The Company and its subsidiaries possess all material licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(aa) The Company and its subsidiaries (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 and are in compliance with all permits, licenses or other approvals required of them under applicable
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Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any Environmental Laws, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). Except as set forth in the Disclosure Package and the Final Prospectus, neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(bb) In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (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). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(cc) None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan (as defined below), determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its subsidiaries that could have a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or any of its subsidiaries that could have a Material Adverse Effect. Except as set forth in the Disclosure Package and the Final Prospectus, none of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or any of its subsidiaries related to their employment that could have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan
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(within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or any of its subsidiaries may have any liability.
(dd) The Company and its subsidiaries own, possess, license or have other rights to use, on reasonable terms, all material patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, “Intellectual Property”) necessary for the conduct of the Company’s business as now conducted or as proposed in the Final Prospectus to be conducted. Except as set forth in the Disclosure Package and the Final Prospectus, to the knowledge of the Company, (a) there are no material rights of third parties to any such Intellectual Property; (b) there is no material infringement by third parties of any such Intellectual Property; (c) there is no pending or threatened material action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such material claim; (d) there is no pending or threatened material action, suit, proceeding or claim by third parties challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such material claim; (e) there is no pending or threatened material action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would constitute a reasonable basis for any such material claim; (f) there is no U.S. patent or published U.S. patent application which contains claims which may have a Material Adverse Effect and that dominate or may dominate any Intellectual Property described in the Disclosure Package and the Final Prospectus as being owned by or licensed to the Company or that materially interferes with any issued or pending claims of any such Intellectual Property of the Company and (g) there is no material prior art of which the Company is aware that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark Office.
(ee) There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(ff) The Company maintains a system of internal accounting control over financial reporting with respect to itself and its consolidated subsidiaries sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (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. The Company’s internal control over financial reporting is effective as of
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September 30, 2026, and the Company is not aware of any material weakness in its internal control over financial reporting.
(gg) The Company maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act) and such disclosure controls and procedures are effective. The Company has carried out and will continue to carry out evaluations, under the supervision and with the participation of the management of the Company, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures in accordance with Rule 13a-15(b) of the Exchange Act.
(hh) Except for the circumstances described in the Disclosure Package and the Final Prospectus and the consequences thereof, neither the Company nor any of its subsidiaries nor, to the knowledge of the Company’s executive officers, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries, is aware of or has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or (ii) taken any action, directly or indirectly, that would result in a material violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or the U.K. Bribery Act 2010, as amended, and the rules and regulations thereunder (the “UKBA”), or similar law of any other relevant jurisdiction, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company and its subsidiaries and, to the knowledge of the Company, the Company’s affiliates have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to ensure, compliance with the FCPA and the UKBA.
(ii) The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental entity (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or before any governmental entity involving the Company or its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj) None of the Company or any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government (including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets
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Control), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Targeted Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of an embargo by the foregoing authorities (an “Embargo”); and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Persons, to fund any activities of or business with any Person, that, at the time of such funding, is the subject of Targeted Sanctions or is located, organized or resident in a country or territory that is the subject of an Embargo, or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Targeted Sanctions or an Embargo. For the past ten years, other than as disclosed in the Disclosure Package and the Final Prospectus, the Company and its subsidiaries have not knowingly engaged in, and are not now knowingly engaged in, any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject of Targeted Sanctions or was located, organized or resident in any country or territory that is the subject of an Embargo, except (1) pursuant to general or specific licenses issued by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce, the Netherlands Customs Central Import and Export Office (CDIU), the Swiss State Secretariat for Economic Affairs, the UK Office of Financial Sanctions Implementation, or relevant Sanctions Committees of the United Nations Security Council or (2) in countries or territories that are the subject of Targeted Sanctions where such dealings or transactions are not subject to license requirements, in each case not in violation of Targeted Sanctions or an Embargo. It is acknowledged and agreed that the representations and undertakings set forth in this Section 1(jj) will not apply to any party to this Agreement if and to the extent that such representation or undertaking would result in a breach or violation of, or conflict with, (i) any provision of the Council Regulation (EC) No 2271/1996, as amended (the “Blocking Regulation”) (or any law or regulation implementing such Blocking Regulation in any member state of the European Union) or (ii) the Blocking Regulation as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, as amended.
(kk) With respect to the stock options (the “Stock Options”) granted pursuant to the equity-based compensation plans of the Company and its subsidiaries (together with any employee stock purchase plan, the “Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by the Company to the grant recipients, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of the New York Stock Exchange and any other exchange on which Company securities are traded, (iv) the
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per share exercise price of each Stock Option was equal to the fair market value of a share of common stock on the applicable Grant Date and (v) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States in the financial statements (including the related notes) of the Company and disclosed in the Company’s filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinated the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(ll) Except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any of the Underwriters and (ii) does not currently intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of any of the Underwriters.
(mm) The Company has not taken, (i) directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act, the Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or (ii) to the extent informed by the Underwriters in writing, any action or omitted to take any action that may result in the loss by the Underwriters of the ability to rely on any stabilization safe harbor provided under the UK Financial Services and Markets Act 2000, as amended (the “FSMA”).
(nn) The Company has not distributed nor, prior to the later to occur of (i) the Applicable Time and (ii) the completion of the distribution of the Securities, will distribute any material in connection with the offering and sale of the Securities other than the Disclosure Package or the Final Prospectus or other materials, if any, that are not prohibited by the FSMA, and regulations promulgated pursuant to the FSMA, and that are not prohibited by this Agreement.
(oo) Except as set forth in the Disclosure Package and the Final Prospectus, no “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) has indicated to the Company that it is considering any of the actions described in Section 6(h) hereof.
(pp) The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted and, to the Company’s knowledge, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures and safeguards to maintain and protect their material confidential information and the integrity, continuous operation,
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redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and the Company is not aware of any material breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied either (i) without material cost or liability or (ii) without the duty to notify any other person, nor are any material incidents under internal review or investigations relating to the same. To the Company’s knowledge, the Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
(qq) The Agency Agreement has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the Paying Agent and the Trustee, will constitute a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at 99.594% of the principal amount thereof, the respective principal amount of the Securities set forth opposite such Underwriter’s name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at 10:00 a.m., London time, on November 12, 2026, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase prices thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities purchased by the Underwriters shall be made through the facilities of Euroclear Bank, SA/NV, as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, SA (“Clearstream”) unless the Representatives shall otherwise instruct. Certificates for the Securities shall be registered in such names and in such denominations as the Representatives may request not less than two Business Days in advance of the Closing Date. The Settlement Lead Manager (as defined in Section 22 hereof) acknowledges that the Securities represented by the one or more global notes representing the Securities (collectively, the “Global Notes”) will initially be credited to an account
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(the “Commissionaire Account”) for the benefit of the Settlement Lead Manager, 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 into the Commissionaire Account on a delivery against payment basis. The Settlement Lead Manager acknowledges that (i) the Securities represented by the Global Notes shall be held to the order of the Company as set out above and (ii) the net subscription monies for the Securities received in the Commissionaire Account will be held on behalf of the Company until such time as they are transferred to the Company’s order. The Settlement Lead Manager undertakes that the net subscription monies for the Securities 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 Civil Code of Belgium and Luxembourg, as applicable, in respect of the Commissionaire Account.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus. In particular, each Underwriter agrees that it has complied and will comply with the marketing and selling restrictions described under the caption “Selling Restrictions” in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed (without reliance on Rule 424(b)(8)) and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the
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Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) It will prepare a final term sheet in the form approved by you and attached as Schedule III hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus, to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or otherwise effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any
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supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering of the Securities.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereof; provided that the prior written consent of the Company shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of Barclays Bank PLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Securities and the “USD Notes” as defined in the final term sheet attached as Schedule III hereto) or publicly announce an intention to effect any such transaction, until the Business Day following the Closing Date.
(j) (i) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company or any of its subsidiaries whether to facilitate the sale or resale of the
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Securities or otherwise; and (ii) the Company agrees, to the extent informed by the Underwriters in writing, not to take any action or omit to take any action, and to cause its subsidiaries not to take any action or omit to take any action, that may result in the loss by the Underwriters of the ability to rely on the stabilization safe harbor provided under the FSMA.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Securities on the New York Stock Exchange; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (x) the fees and expenses of the Trustee and the Paying Agent, including the reasonable fees and disbursements of counsel for such parties in connection with the Indenture, the Securities and the Agency Agreement; (xi) any fees payable in connection with the rating of the Securities with the ratings agencies; and (xii) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) The Company shall apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Disclosure Package and the Final Prospectus.
(m) The Company will cooperate with the Underwriters and use its reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of Euroclear and Clearstream.
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(n) The Company will use its reasonable efforts to effect the admission, listing and trading of the Securities on the New York Stock Exchange within 30 calendar days of the date hereof.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Faegre Drinker Biddle & Reath LLP, counsel for the Company, to have furnished to the Representatives their opinion and 10b-5 statement, dated the Closing Date and addressed to the Representatives, in substantially the forms agreed to prior to the date hereof.
(c) The Company shall have requested and caused its Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary, Chad F. Phipps, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form agreed to prior to the date hereof.
(d) The Representatives shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer and the Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary of the Company (or two other senior officers of the Company reasonably acceptable to the Representatives), dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
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(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements of the Company included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendments or supplements thereto after the date hereof).
(f) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Representatives of the type described in PCAOB Statement on Auditing Standards AS 6101.
(g) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(f) hereof or (ii) any change, or any development involving a prospective change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Except as set forth in the Disclosure Package, subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
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(i) The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.
(j) As of the Closing Date, the Company shall have submitted an application for the admission, listing and trading of the Securities on the New York Stock Exchange.
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Moore LLP, counsel for the Underwriters, at 375 Ninth Avenue, New York, New York 10001, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representatives on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by each of them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter and any affiliate through which it may be acting, the directors, officers, employees and agents of each Underwriter and any such affiliate and each person who “controls” any Underwriter and any such affiliate within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to
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Section 5(b) hereof, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with the Underwriters Information (as defined below). Each of the Underwriters and the Company agree that “Underwriters Information” consists solely of the written information furnished by the Representatives on behalf of the Underwriters to the Company in connection with the offering of the Securities, which consists of the following in any Preliminary Prospectus and the Final Prospectus: (i) the first sentence of the last paragraph on the cover page regarding the expected delivery of the Securities, (ii) the name of each Underwriter and its participation in the sale of the Securities, (iii) the sentences in the fourth paragraph under the caption “Underwriting (Conflicts of Interest)” related to concessions and reallowances and (iv) the information under the caption “Notices to Prospective Investors–Stabilization” and in the seventh, eighth and ninth paragraphs under the caption “Underwriting (Conflicts of Interest)” related to stabilization, syndicate covering transactions and penalty bids. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who “controls” the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to the Underwriters Information relating to such Underwriter. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the
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indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless (i) such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively, “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Underwriters, on the other, from the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company, on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge and access to information and opportunity to correct or prevent such untrue statement or omission. Notwithstanding the provisions of this paragraph (d), each Underwriter shall not be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. The Company and the Underwriters agree that it would
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not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who “controls” an indemnified party within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such indemnified party (and any affiliate through which any Underwriter may be acting) shall have the same rights to contribution as the indemnified party, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s common stock or debt securities shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal, New York State, European Union or British authorities, (iii) there shall have occurred a material disruption in securities settlement, payment or clearance services in the United States, European Union or United Kingdom or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States, any member state of the European Union or United Kingdom of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering
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or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the affiliates, officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Barclays Bank PLC, 1 Churchill Place, London E14 5HP, United Kingdom, Attn: Debt Syndicate, Email: LeadManagedBondNotices@barclayscorp.com; Citigroup Global Markets Limited, Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, United Kingdom, Tel: +44 (0) 20 7986 9000, Attn: Syndicate Desk; HSBC Bank plc, 8 Canada Square. London E14 5HQ, United Kingdom, Attn: Head of DCM Legal, Email: transaction.management@hsbcib.com; Morgan Stanley & Co. International plc, 25 Cabot Square, Canary Wharf, London E14 4QA, United Kingdom, Attn: Head of Transaction Management Group, Global Capital Markets, Email: tmglondon@morganstanley.com; and RBC Europe Limited, 100 Bishopsgate, London EC2N 4AA, United Kingdom, Attn: New Issues Syndicate Desk, Email: TMGUK@rbccm.com, or, if sent to the Company, will be mailed, delivered or telefaxed to Zimmer Biomet Holdings, Inc., Chad F. Phipps, Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary, Fax: (574) 372-4302 and confirmed to it at 345 East Main Street, Warsaw, Indiana 46580, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the affiliates, officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and each Underwriter and any affiliate through which it may be acting, on the other, (b) each Underwriter is acting as principal and not as an agent or fiduciary of the Company and (c) the engagement of each Underwriter by the Company in connection with the offering of the Securities and the process leading up to the offering is as an independent contractor and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any Underwriter has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that any Underwriter has rendered advisory services of any nature or respect, or owes an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
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15. Integration. 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.
16. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
19. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Applicable Time” shall mean 3:30 p.m. (London time) on the date of this Agreement.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Applicable Time.
“Business Day” shall mean any day, other than (1) a Saturday, (2) a Sunday, (3) a day on which banking institutions in New York City or London are authorized or required by law or executive order to close or (4) a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (T2), or any successor thereto, does not operate.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Applicable Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereof, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
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“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Applicable Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements, and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 401”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”, “Rule 433”, “Rule 456”, “Rule 457” and “Rule 462” refer to such rules under the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
21. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement
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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.
(c) As used in this Section 21:
(i) “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).
(ii) “Covered Entity” means any of the following:
| (1) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (2) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (3) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
(iii) “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.
(iv) “U.S. Special Resolution Regime” means each of (x) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (y) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
22. Agreement Among Managers. The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Market Association Agreement Among Managers Version 1/New York Law Schedule (the “Agreement Among Managers”), subject to any amendment notified to the Underwriters in writing prior to the execution of this Agreement, and further agree that, for purposes of the Agreement Among Managers, (a) “Managers” means the Underwriters, “Lead Manager” means the Representatives, “Settlement Lead Manager” means Barclays Bank PLC, “Stabilising Manager” means Barclays Bank PLC and “Subscription Agreement” means this Agreement, (b) Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 9 of this Agreement and (c) each Underwriter’s “Commitment” means the amount set forth opposite such Underwriter’s name in Schedule I hereto. Where there is any inconsistency between this Agreement and the Agreement Among Managers, the terms of this Agreement shall prevail.
23. Stabilization. In connection with the offering of the Securities, Barclays Bank PLC, in its role as stabilizing manager (the “Stabilizing Manager”), for its own account may, to the extent permitted by applicable laws and directives, over-allot Securities or effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Any stabilization
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action may begin on or after the date on which adequate public disclosure of the final terms of the offer of the Securities is made, and, if begun, may be ended at any time, but it must end no later than the earlier of 30 days after the issuance of the Securities and 60 days after the date of the allotment of the Securities. Any stabilization action or over-allotment commenced will be carried out in accordance with applicable laws and regulations. Any loss or profit sustained as a consequence of such over-allotment or stabilization shall be for the account of the Stabilizing Manager.
24. Contractual Recognition of EU Bail-In Powers. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understandings between the Underwriters and the Company, the Company acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts and agrees to be bound by:
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the Underwriters to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the Underwriters or another person, and the issue to or conferral on the Company of such shares, securities or obligations;
(iii) the cancellation of the BRRD Liability;
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of the Bail-in Powers by the Relevant Resolution Authority.
(c) For the purpose of this Section 24:
(i) “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.
(ii) “Bail-in Powers” means any Write Down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
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(iii) “BRRD” means Directive 2014/59/EU, as amended, establishing a framework for the recovery and resolution of credit institutions and investment firms.
(iv) “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.
(v) “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.
(vi) “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to any Underwriter and its obligations under this Agreement.
25. Contractual Recognition of UK Bail-In Powers. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understandings between the Company and the Underwriters, 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:
(a) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of the Underwriters to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the Underwriters or another person, and the issue to or conferral on the Company of such shares, securities or obligations;
(iii) the cancellation of the UK Bail-in Liability;
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of the UK Bail-in Powers by the relevant UK resolution authority.
(c) For the purpose of this Section 25:
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(i) “UK Bail-in Legislation” means Part I of the UK Banking Act 2009 and any other law or regulation applicable in the United Kingdom 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).
(ii) “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised.
(iii) “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.
26. UK MiFIR Product Governance Rules. Solely for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:
(a) each of Barclays Bank PLC, Citigroup Global Markets Limited, HSBC Bank plc, Morgan Stanley & Co. International plc and RBC Europe Limited (each, a “UK Manufacturer” and, together, the “UK Manufacturers”) acknowledges to each other UK Manufacturer that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in the Registration Statement, any Preliminary Prospectus, the Disclosure Package, the Final Prospectus or any such amendment or supplement, in connection with the Securities; and
(b) the Company and each Underwriter other than the UK Manufacturers note the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the UK Manufacturers and the related information set out in the Registration Statement, any Preliminary Prospectus, the Disclosure Package, the Final Prospectus or any such amendment or supplement, in connection with the Securities.
31
27. Electronic Signatures. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
32
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Underwriters.
| Very truly yours, | ||
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | /s/ Pradipto Bagchi | |
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| BARCLAYS BANK PLC | ||
| By: | /s/ Lynda Fleming | |
| Name: Lynda Fleming | ||
| Title: Authorised Signatory | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| CITIGROUP GLOBAL MARKETS LIMITED | ||
| By: | /s/ Paula Clarke | |
| Name: Paula Clarke | ||
| Title: Director, Transaction Execution Group | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| HSBC BANK PLC | ||
| By: | /s/ Samantha Riley | |
| Name: Samantha Riley | ||
| Title: Head of DCM Legal | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| MORGAN STANLEY & CO. INTERNATIONAL PLC | ||
| By: | /s/ Kathryn McArdle | |
| Name: Kathryn McArdle | ||
| Title: Executive Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| RBC EUROPE LIMITED | ||
| By: | /s/ Elaine S. Murray | |
| Name: Elaine S. Murray | ||
| Title: Duly Authorised Signatory | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| DNB CARNEGIE, A PART OF DNB BANK ASA | ||
| By: | /s/ Daniela Loukarova Öhbom | |
| Name: Daniela Loukarova Öhbom | ||
| Title: Legal Counsel | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| BNP PARIBAS | ||
| By: | /s/ Christian Stewart | |
| Name: Christian Stewart | ||
| Title: Managing Director | ||
| By: | /s/ Rafael Ribeiro | |
| Name: Rafael Ribeiro | ||
| Title: Head of Investment Grade Finance, Americas |
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| GOLDMAN SACHS & CO. LLC | ||
| By: | /s/ Karim Saleh | |
| Name: Karim Saleh | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| J.P. MORGAN SECURITIES PLC | ||
| By: | /s/ Robert Chambers | |
| Name: Robert Chambers | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| MERRILL LYNCH INTERNATIONAL | ||
| By: | /s/ Mark Kitchen | |
| Name: Mark Kitchen | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| MIZUHO INTERNATIONAL PLC | ||
| By: | /s/ Manabu Shibuya | |
| Name: Manabu Shibuya | ||
| Title: Authorised Signatory | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| SMBC BANK INTERNATIONAL PLC | ||
| By: | /s/ Andrew Burton | |
| Name: Andrew Burton | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| UBS AG LONDON BRANCH | ||
| By: | /s/ Perry Ward | |
| Name: Perry Ward | ||
| Title: Director | ||
| By: | /s/ Jake Webster | |
| Name: Jake Webster | ||
| Title: Executive Director |
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| U.S. BANCORP INVESTMENTS, INC. | ||
| By: | /s/ William Carney | |
| Name: William Carney | ||
| Title: Managing Director | ||
SCHEDULE I
| Underwriters |
Principal Amount of the Securities to be Purchased |
|||
| Barclays Bank PLC |
€ | 80,000,000 | ||
| Citigroup Global Markets Limited |
75,000,000 | |||
| HSBC Bank plc |
75,000,000 | |||
| Morgan Stanley & Co. International plc |
75,000,000 | |||
| RBC Europe Limited |
75,000,000 | |||
| DNB Carnegie, a part of DNB Bank ASA |
35,000,000 | |||
| BNP PARIBAS |
11,250,000 | |||
| Goldman Sachs & Co. LLC |
11,250,000 | |||
| J.P. Morgan Securities plc |
11,250,000 | |||
| Merrill Lynch International |
11,250,000 | |||
| Mizuho International plc |
11,250,000 | |||
| SMBC Bank International plc |
11,250,000 | |||
| UBS AG London Branch |
8,750,000 | |||
| U.S. Bancorp Investments, Inc. |
8,750,000 | |||
|
|
|
|||
| Total |
€ | 500,000,000 | ||
|
|
|
|||
SCHEDULE II
| 1. | Issuer Free Writing Prospectus, dated November 5, 2026, relating to the Securities, substantially in the form of Schedule III hereto. |
SCHEDULE III
See attached.
Zimmer Biomet Holdings, Inc.
Pricing Term Sheet
€500,000,000 4.375% Notes due 2033
November 5, 2026
The information in this pricing term sheet (the “Pricing Term Sheet”) supplements the information in Zimmer Biomet Holdings, Inc.’s preliminary prospectus supplement, dated November 5, 2026, relating to the Notes (as defined below) (the “Preliminary Prospectus”) and supersedes the information in the Preliminary Prospectus to the extent inconsistent with the information in the Preliminary Prospectus. Otherwise, this Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Prospectus. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Preliminary Prospectus.
| Issuer: |
Zimmer Biomet Holdings, Inc. (the “Company”) | |
| Issuer Legal Entity Identifier: |
2P2YLDVPES3BXQ1FRB91 | |
| Offering Format: |
SEC Registered | |
| Title of Securities: |
€500,000,000 4.375% Notes due 2033 (the “Notes”) | |
| Principal Amount: |
€500,000,000 | |
| Price to Public: |
99.994% | |
| Gross Proceeds: |
€499,970,000 | |
| Underwriting Discount: |
0.400% | |
| Net Proceeds (before expenses): |
€497,970,000 | |
| Maturity Date: |
November 12, 2033 | |
| Coupon: |
4.375% | |
| Yield to Maturity: |
4.376% | |
| Benchmark Bund: |
DBR 3.300% due November 15, 2033 | |
| Benchmark Bund Price; Yield: |
100.830 / 3.165% | |
| Spread to Benchmark Bund: |
+121.1 basis points | |
| Mid-Swap: |
7-year Mid-Swap | |
| Mid-Swap Yield: |
3.306% | |
| Spread to Mid-Swap Yield: |
+107 basis points | |
| Interest Payment Date: |
Annually in arrears on November 12 of each year, commencing on November 12, 2027 | |
| Day Count Convention: |
ACTUAL/ACTUAL (ICMA) | |
| Stabilization: |
Stabilization/FCA | |
| Redemption Provisions: |
Prior to August 12, 2033 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and | |
| from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on an annual basis (ACTUAL/ACTUAL (ICMA)) at the Comparable Government Bond Rate, plus 20 basis points less (b) interest accrued to the date of redemption, and
(2) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the redemption date.
On or after the 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 the redemption date.
In the event that certain developments affecting United States taxation would cause the Company to pay additional amounts with respect to the Notes as described under the caption “Description of the Notes–Redemption for Tax Reasons” in the Preliminary Prospectus, the Company may, at any time at its option, redeem the Notes, in whole but not in part, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest thereon to, but excluding, the redemption date. | ||
| Repurchase at the Option of Holders upon a Change of Control Repurchase Event: |
If a Change of Control Repurchase Event occurs with respect to the Notes, the Company will be required to offer to repurchase the Notes at a repurchase price equal to 101% of their principal amount, plus accrued and unpaid interest on the Notes to be repurchased to the date of repurchase, unless the Notes have been previously redeemed or called for redemption. | |
| CUSIP: |
98956P BE1 | |
| ISIN: |
XS3559427243 | |
| Common Code: |
355942724 | |
| Ratings*: |
Intentionally Omitted | |
| Trade Date: |
November 5, 2026 | |
| Settlement Date**: |
November 12, 2026 (T+5 clearing system business days) | |
| Joint Book-Running Managers: |
Barclays Bank PLC Citigroup Global Markets Limited HSBC Bank plc Morgan Stanley & Co. International plc RBC Europe Limited DNB Carnegie, a part of DNB Bank ASA BNP PARIBAS Goldman Sachs & Co. LLC | |
| J.P. Morgan Securities plc Merrill Lynch International Mizuho International plc SMBC Bank International plc | ||
| Senior Co-Managers: |
UBS AG London Branch U.S. Bancorp Investments, Inc. | |
| Form of Notes: |
Global notes deposited with, or on behalf of, U.S. Bank Europe DAC, or a nominee thereof, as common depositary for Clearstream and Euroclear. | |
| Expected Listing: |
The Company will use its reasonable efforts to list the Notes on the New York Stock Exchange. The listing application will be subject to approval by the New York Stock Exchange. If the application is approved, trading of the Notes on the New York Stock Exchange is expected to begin within 30 days of the original issue date of the Notes. If such a listing is obtained, the Company will have no obligation to maintain such listing and may delist the Notes at any time. | |
| Governing Law: |
New York. | |
| Prohibition of Sales to EEA/UK Retail Investors: | Applicable. | |
| Target Market (MiFID II/UK MiFIR Product Governance): | Eligible counterparties and professional clients only (all distribution channels). No EEA PRIIPs key information document (KID) or UK DISC disclosure document has been prepared as the Notes are not available to retail in EEA or the UK. | |
| Denominations: |
Minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof. | |
| Concurrent Offering: |
Shortly after the commencement of this offering, the Company commenced an offering, by means of a separate prospectus supplement, of U.S. dollar-denominated notes (the “USD Notes” and such offering, the “USD Notes Offering”). Neither this offering nor the USD Notes Offering is contingent on the completion of the other, so it is possible that this offering is completed and the USD Notes Offering is not completed, and vice versa. The Company cannot assure you that the USD Notes Offering will be completed. This Pricing Term Sheet is not an offer to sell or a solicitation of an offer to buy any USD Notes. | |
| * | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal by the assigning rating organization at any time. Each rating should be evaluated independently of any other rating. |
| ** | Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the first business day before the delivery of the Notes will be required to specify alternative settlement arrangements to prevent a failed settlement. Purchasers of the Notes who wish to trade Notes prior to their date of delivery hereunder should consult their own advisors. |
This Pricing Term Sheet supplements the Preliminary Prospectus issued by the Company on November 5, 2026 relating to its prospectus dated February 25, 2025, Registration Statement No. 333-285227.
The Company has filed a registration statement (including a base prospectus) and the Preliminary Prospectus with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the Preliminary Prospectus, the accompanying base prospectus in that registration statement, this Pricing Term Sheet and other documents the Company has filed with the SEC for more complete information about the Company and this offering. You may obtain these documents for free by visiting EDGAR on the SEC’s website at www.sec.gov. Alternatively, the Company, any underwriter or any dealer participating in the offering will arrange to send you the Preliminary Prospectus, the final prospectus supplement (when available) and the accompanying base prospectus if you request it by calling Barclays Bank PLC at +1 (888) 603-5847, Citigroup Global Markets Limited at +1 (800) 831-9146, HSBC Bank plc at +44 20-7991-8888, Morgan Stanley & Co. International plc at +1 (866) 718-1649 and RBC Europe Limited at +44 20-7029-7031.
Solely for the purposes of each manufacturer’s product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is eligible counterparties and professional clients only, each as defined in Directive (EU) 2014/65 (as amended, “MiFID II”); and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a “distributor”) should take into consideration the manufacturers’ target market assessment; however, a distributor subject to MiFID II is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturers’ target market assessment) and determining appropriate distribution channels.
Solely for the purposes of each manufacturer’s product approval process, the target market assessment in respect of the Notes has led to the conclusion that: (i) the target market for the Notes is only eligible counterparties, as defined in the FCA Handbook Conduct of Business Sourcebook (“COBS”), and professional clients, as defined in Regulation (EU) No 600/2014 as it forms part of domestic law in the United Kingdom (the “UK”) by virtue of the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020 (the “EUWA”) (“UK MiFIR”); and (ii) all channels for distribution of the Notes to eligible counterparties and professional clients are appropriate. Any person subsequently offering, selling or recommending the Notes (a “UK distributor”) should take into consideration the manufacturers’ target market assessment; however, a UK distributor subject to the FCA Handbook Product Intervention and Product Governance Sourcebook is responsible for undertaking its own target market assessment in respect of the Notes (by either adopting or refining the manufacturers’ target market assessment) and determining appropriate distribution channels.
The Notes are not intended to be offered, sold or otherwise made available to and should not be offered, sold or otherwise made available to any retail investor in the European Economic Area (the “EEA”). For these purposes, a retail investor means a person who is one (or more) of: (i) a retail client as defined in point (11) of Article 4(1) of MiFID II; (ii) a customer within the meaning of Directive (EU) 2016/97, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129. Consequently, no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Notes or otherwise making them available to retail investors in the EEA has been prepared and, therefore, offering or selling the Notes or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.
The Notes are not intended to be offered, sold, distributed or otherwise made available to and should not be offered, sold, distributed or otherwise made available to any retail investor in the UK. For these purposes, a retail investor means a person who is neither: (i) a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK domestic law by virtue of the EUWA; nor (ii) a qualified investor as defined in paragraph 15 of Schedule 1 to the Public Offers and Admissions to Trading Regulations 2024 (the “POATRs”). Consequently, no disclosure document required by the FCA Product Disclosure Sourcebook (“DISC”) for offering, selling or distributing the Notes or otherwise making them available to retail investors in the UK has been prepared and, therefore, offering, selling or distributing the
Notes or otherwise making them available to any retail investor in the UK may be unlawful under the DISC and the Consumer Composite Investments (Designated Activities) Regulations 2024.
In the UK, this Pricing Term Sheet is only being distributed to and is only directed at those persons in the UK who have professional experience in matters relating to investments and who fall within the definition of investment professionals (as defined in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Financial Promotion Order”)), or who fall within Article 49(2)(a) to (d) of the Financial Promotion Order, or who are any other persons to whom it may otherwise lawfully be made under the Financial Promotion Order (all such persons together being referred to as “Relevant Persons”). In the UK, any investment or investment activity to which the Preliminary Prospectus relates will be engaged in only with, the Notes are only available to, and any invitation, offer or agreement to subscribe, purchase or otherwise acquire such Notes will be engaged in only with, Relevant Persons. Any person in the UK who is not a Relevant Person should not act or rely on this Pricing Term Sheet or any of its contents.
Singapore Securities and Futures Act Product Classification—In connection with Section 309B of the Securities and Futures Act 2001 (2020 Revised Edition) of Singapore (as modified and/or amended from time to time, the “SFA”), and the Securities and Futures (Capital Markets Products) Regulations 2018 of Singapore (the “CMP Regulations 2018”), unless otherwise specified before an offer of the Notes, the Company has determined, and hereby notifies all relevant persons (as defined in Section 309A of the SFA) that the Notes are “prescribed capital markets products” (as defined in the CMP Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Exhibit 1.2
Zimmer Biomet Holdings, Inc.
$500,000,000 5.850% Notes due 2036
Underwriting Agreement
New York, New York
November 5, 2026
Barclays Capital Inc.
BofA Securities, Inc.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
SMBC Nikko Securities America, Inc.
As representatives of the several
underwriters named in Schedule I hereto
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Mizuho Securities USA LLC
1271 Avenue of the Americas
New York, New York 10020
SMBC Nikko Securities America, Inc.
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Zimmer Biomet Holdings, Inc., a corporation organized under the laws of the State of Delaware (the “Company”), proposes to sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, $500,000,000 aggregate principal amount of its 5.850% Notes due 2036 (the “Securities”). The Securities will be issued under an indenture (as supplemented prior to the date hereof, the “Base
Indenture”) dated as of November 17, 2009, between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the fourteenth supplemental indenture to be dated as of November 12, 2026 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) between the Company and the Trustee.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405, on Form S-3 (Registration No. 333-285227), including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Applicable Time, became effective upon filing and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or, to the Company’s knowledge, threatened by the Commission. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Applicable Time or, to the extent not completed at the Applicable Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Applicable Time, will be included or made therein. The Registration Statement, at the Applicable Time, meets the requirements set forth in Rule 415(a)(1)(x).
2
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the Applicable Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; the Indenture complies in all material respects with the applicable requirements of the Trust Indenture Act and the rules promulgated thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification on Form T-1 under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(a) hereof.
(c) As of the Applicable Time, (i) the Disclosure Package and (ii) each electronic road show, when taken together as a whole with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(a) hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163 and (iv) at the Applicable Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a Well-Known Seasoned Issuer. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
3
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereof does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(a) hereof.
(g) The documents incorporated by reference in the Disclosure Package and the Final Prospectus, when they become effective or when they were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement and the Final Prospectus, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder then in effect and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(h) Since the respective dates as of which information is given in the Disclosure Package and the Final Prospectus, there has not been (i) any material change in the capital stock (other than changes pursuant to open market or accelerated repurchase plans, dividend reinvestment or director or employee stock purchase or benefit plans) or long-term debt of the Company and its subsidiaries considered as a whole or (ii) any material adverse change, or any development known to the Company involving a prospective material adverse change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Final Prospectus.
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(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; the Company is duly qualified as a foreign corporation to transact business and, to the extent such concept is applicable, is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not have a material adverse effect on the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole (a “Material Adverse Effect”).
(j) Each of the Company’s subsidiaries that qualifies as a “significant subsidiary” under Section 1-02(w) of Regulation S-X (each, a “Significant Subsidiary” and, collectively, the “Significant Subsidiaries”), has been duly organized and is validly existing and, to the extent such concept is applicable, is in good standing under the laws of the jurisdiction of its organization, with power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus; each Significant Subsidiary is duly qualified to transact business and, to the extent such concept is applicable, is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; except as otherwise disclosed in the Disclosure Package and the Final Prospectus, all of the issued and outstanding capital stock of each Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and (except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law) is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(k) The Company has an outstanding capital stock as set forth in the Disclosure Package and the Final Prospectus (except for subsequent issuances pursuant to dividend reinvestment or director or employee stock purchase or benefit plans or pursuant to the exercise of options and except for repurchases in connection with open market or accelerated repurchase plans), and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(l) This underwriting agreement (this “Agreement”) has been duly authorized, executed and delivered by the Company.
(m) The Securities have been duly authorized, and, when issued and delivered pursuant to this Agreement, the Securities will have been duly executed, issued and delivered and (assuming the due authentication thereof by the Trustee) will constitute valid and legally binding obligations of the Company, will be entitled to the benefits provided by the Indenture and will be enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
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(n) The Base Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; the Supplemental Indenture has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and will constitute a valid and legally binding agreement of the Company, enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; the Base Indenture has been duly qualified under the Trust Indenture Act; and the Indenture will conform in all material respects to the requirements of the Trust Indenture Act.
(o) The Indenture and the Securities will conform, in all material respects, to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(p) The statements in each of the Disclosure Package and the Final Prospectus under the captions “Description of the Notes” and “Description of Debt Securities We May Offer,” in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
(q) The issuance and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its Significant Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, which would reasonably be expected to have a Material Adverse Effect or affect the validity of the Securities or the legal authority of the Company to comply with the Securities, the Indenture or this Agreement; nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or the Restated Bylaws of the Company; nor will such action result in a violation of any statute or any order, rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties.
(r) No consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body in the United States having jurisdiction over the Company is required for the issuance and sale of the Securities or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except such consents, approvals, authorizations, orders, registrations or qualifications as may be required by the securities or blue sky laws of the
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various states, the Act, the Trust Indenture Act and the securities laws of any jurisdiction outside the United States in which the Securities are offered.
(s) Except as set forth in the Disclosure Package and the Final Prospectus, 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 or its or their property is pending or, to the knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect.
(t) The accountants who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package and the Final Prospectus were independent registered public accountants with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder, at the time of the applicable audit.
(u) Except as set forth in the Disclosure Package and the Final Prospectus, the consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly in all material respects the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form in all material respects with the applicable accounting requirements of the Act and have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods involved (except as otherwise noted therein).
(v) 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 the Disclosure Package and the Final Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(w) The Company has filed all tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)) and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(x) No labor problem or dispute with the employees of the Company or any of its subsidiaries that could have a Material Adverse Effect exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by
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the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers that could have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(y) Except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), the Company and each of its subsidiaries are insured by responsible and reputable insurers against such losses and risks and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as are prudent and customary in the case of entities of established reputations engaged in the same or similar businesses in which they are engaged and similarly situated; provided that such insurance is available in the relevant market; all policies of insurance insuring the Company or any of its subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; there are no material claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(z) The Company and its subsidiaries possess all material licenses, certificates, permits and other authorizations issued by all applicable authorities necessary to conduct their respective businesses, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(aa) The Company and its subsidiaries (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 and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received notice of any actual or potential liability under any Environmental Laws, except where such non-compliance with Environmental Laws, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). Except as set forth in the Disclosure Package and the Final Prospectus, neither the Company nor any of the subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
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(bb) In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (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). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(cc) None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the regulations and published interpretations thereunder with respect to a Plan (as defined below), determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental agency or any foreign regulatory agency with respect to the employment or compensation of employees by any of the Company or any of its subsidiaries that could have a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company or any of its subsidiaries that could have a Material Adverse Effect. Except as set forth in the Disclosure Package and the Final Prospectus, none of the following events has occurred or is reasonably likely to occur: (i) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the most recently completed fiscal year of the Company and its subsidiaries; (ii) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared to the amount of such obligations in the most recently completed fiscal year of the Company and its subsidiaries; (iii) any event or condition giving rise to a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or more employees or former employees of the Company or any of its subsidiaries related to their employment that could have a Material Adverse Effect. For purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company or any of its subsidiaries may have any liability.
(dd) The Company and its subsidiaries own, possess, license or have other rights to use, on reasonable terms, all material patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, “Intellectual Property”) necessary for the conduct of the Company’s business as now conducted or as proposed in the Final Prospectus to be conducted. Except as set forth in
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the Disclosure Package and the Final Prospectus, to the knowledge of the Company, (a) there are no material rights of third parties to any such Intellectual Property; (b) there is no material infringement by third parties of any such Intellectual Property; (c) there is no pending or threatened material action, suit, proceeding or claim by others challenging the Company’s rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such material claim; (d) there is no pending or threatened material action, suit, proceeding or claim by third parties challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such material claim; (e) there is no pending or threatened material action, suit, proceeding or claim by others that the Company infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of others, and the Company is unaware of any other fact which would constitute a reasonable basis for any such material claim; (f) there is no U.S. patent or published U.S. patent application which contains claims which may have a Material Adverse Effect and that dominate or may dominate any Intellectual Property described in the Disclosure Package and the Final Prospectus as being owned by or licensed to the Company or that materially interferes with any issued or pending claims of any such Intellectual Property of the Company and (g) there is no material prior art of which the Company is aware that may render any U.S. patent held by the Company invalid or any U.S. patent application held by the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark Office.
(ee) There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 relating to loans and Sections 302 and 906 relating to certifications.
(ff) The Company maintains a system of internal accounting control over financial reporting with respect to itself and its consolidated subsidiaries sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (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. The Company’s internal control over financial reporting is effective as of September 30, 2026, and the Company is not aware of any material weakness in its internal control over financial reporting.
(gg) The Company maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act) and such disclosure controls and procedures are effective. The Company has carried out and will continue to carry out evaluations, under the supervision and with the participation of the management of the Company, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures in accordance with Rule 13a-15(b) of the Exchange Act.
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(hh) Except for the circumstances described in the Disclosure Package and the Final Prospectus and the consequences thereof, neither the Company nor any of its subsidiaries nor, to the knowledge of the Company’s executive officers, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries, is aware of or has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or (ii) taken any action, directly or indirectly, that would result in a material violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions or the U.K. Bribery Act 2010, as amended, and the rules and regulations thereunder (the “UKBA”), or similar law of any other relevant jurisdiction, including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company and its subsidiaries and, to the knowledge of the Company, the Company’s affiliates have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to ensure, compliance with the FCPA and the UKBA.
(ii) The operations of the Company and its subsidiaries are, and have been conducted at all times, in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental entity (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or before any governmental entity involving the Company or its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj) None of the Company or any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government (including, without limitation, the U.S. Department of the 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, “Targeted Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of an embargo by the foregoing authorities (an “Embargo”); and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Persons, to fund any activities of or business with any Person, that, at the time of such funding, is the subject of Targeted Sanctions or is located, organized or resident in a country or territory that is the subject of an Embargo, or in any other manner that will result in a violation by any Person (including any Person
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participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Targeted Sanctions or an Embargo. For the past ten years, other than as disclosed in the Disclosure Package and the Final Prospectus, the Company and its subsidiaries have not knowingly engaged in, and are not now knowingly engaged in, any dealings or transactions with any Person that at the time of the dealing or transaction is or was the subject of Targeted Sanctions or was located, organized or resident in any country or territory that is the subject of an Embargo, except (1) pursuant to general or specific licenses issued by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce, the Netherlands Customs Central Import and Export Office (CDIU), the Swiss State Secretariat for Economic Affairs, the UK Office of Financial Sanctions Implementation, or relevant Sanctions Committees of the United Nations Security Council or (2) in countries or territories that are the subject of Targeted Sanctions where such dealings or transactions are not subject to license requirements, in each case not in violation of Targeted Sanctions or an Embargo.
(kk) With respect to the stock options (the “Stock Options”) granted pursuant to the equity-based compensation plans of the Company and its subsidiaries (together with any employee stock purchase plan, the “Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by the Company to the grant recipients, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of the New York Stock Exchange and any other exchange on which Company securities are traded, (iv) the per share exercise price of each Stock Option was equal to the fair market value of a share of common stock on the applicable Grant Date and (v) each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States in the financial statements (including the related notes) of the Company and disclosed in the Company’s filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinated the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects.
(ll) Except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any of the Underwriters and (ii) does not currently intend to use any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt owed to any affiliate of any of the Underwriters.
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(mm) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act, the Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(nn) Except as set forth in the Disclosure Package and the Final Prospectus, no “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) has indicated to the Company that it is considering any of the actions described in Section 6(h) hereof.
(oo) The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted and, to the Company’s knowledge, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and the Company is not aware of any material breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied either (i) without material cost or liability or (ii) without the duty to notify any other person, nor are any material incidents under internal review or investigations relating to the same. To the Company’s knowledge, the Company and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
Any certificate signed by any officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the representations and warranties set forth herein, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at 99.343% of the principal amount thereof, the respective principal amount of the Securities set forth opposite such Underwriter’s name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at 10:00 a.m., New York City time, on November 12, 2026, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called
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the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase prices thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities purchased by the Underwriters shall be made through the facilities of The Depository Trust Company (the “DTC”) unless the Representatives shall otherwise instruct. Certificates for the Securities shall be registered in such names and in such denominations as the Representatives may request not less than two Business Days in advance of the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus. In particular, each Underwriter agrees that it has complied and will comply with the marketing and selling restrictions described under the caption “Selling Restrictions” in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed (without reliance on Rule 424(b)(8)) and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) It will prepare a final term sheet in the form approved by you and attached as Schedule III hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
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(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made or the circumstances then prevailing, not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made at such time, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus, to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or otherwise effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering of the Securities.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the
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Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a Free Writing Prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereof; provided that the prior written consent of the Company shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such Free Writing Prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus”. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of Barclays Capital Inc., offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Securities and the “euro notes” as defined in the Preliminary Prospectus) or publicly announce an intention to effect any such transaction, until the Business Day following the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company or any of its subsidiaries whether to facilitate the sale or resale of the Securities or otherwise.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of
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such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company; (ix) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (x) any fees payable in connection with the rating of the Securities with the ratings agencies; and (xi) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(l) The Company shall apply the net proceeds from the sale of the Securities in the manner described under the caption “Use of Proceeds” in the Disclosure Package and the Final Prospectus.
(m) The Company will cooperate with the Underwriters and use its reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC.
6. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
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(b) The Company shall have requested and caused Faegre Drinker Biddle & Reath LLP, counsel for the Company, to have furnished to the Representatives their opinion and 10b-5 statement, dated the Closing Date and addressed to the Representatives, in substantially the forms agreed to prior to the date hereof.
(c) The Company shall have requested and caused its Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary, Chad F. Phipps, to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form agreed to prior to the date hereof.
(d) The Representatives shall have received from Cravath, Swaine & Moore LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer and the Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary of the Company (or two other senior officers of the Company reasonably acceptable to the Representatives), dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent consolidated financial statements of the Company included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendments or supplements thereto after the date hereof).
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(f) At the date hereof and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the date hereof and as of the Closing Date, in form and substance satisfactory to the Representatives of the type described in PCAOB Statement on Auditing Standards AS 6101.
(g) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(f) hereof or (ii) any change, or any development involving a prospective change, in or affecting the business, business prospects, financial condition or results of operations of the Company and its subsidiaries considered as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Except as set forth in the Disclosure Package, subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Securities shall be eligible for clearance and settlement through DTC.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Moore LLP, counsel for the Underwriters, at 375 Ninth Avenue, New York, New York 10001, on the Closing Date.
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7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through the Representatives on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by each of them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter and any affiliate through which it may be acting, the directors, officers, employees and agents of each Underwriter and any such affiliate and each person who “controls” any Underwriter and any such affiliate within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereof, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with the Underwriters Information (as defined below). Each of the Underwriters and the Company agree that “Underwriters Information” consists solely of the written information furnished by the Representatives on behalf of the Underwriters to the Company in connection with the offering of the Securities, which consists of the following in any Preliminary Prospectus and the Final Prospectus: (i) the first sentence of the last paragraph on the cover page regarding the expected delivery of the Securities, (ii) the name of each Underwriter and its participation in the sale of the Securities, (iii) the sentences in the third paragraph under the caption “Underwriting (Conflicts of Interest)” related to concessions and reallowances and (iv) the sentences in the fifth, sixth and seventh paragraphs under the caption “Underwriting (Conflicts of Interest)” related to stabilization, syndicate covering transactions and penalty bids. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
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(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who “controls” the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to the Underwriters Information relating to such Underwriter. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless (i) such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
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reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively, “Losses”) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and by the Underwriters, on the other, from the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company, on the one hand, or the Underwriters, on the other, the intent of the parties and their relative knowledge and access to information and opportunity to correct or prevent such untrue statement or omission. Notwithstanding the provisions of this paragraph (d), each Underwriter shall not be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who “controls” an indemnified party within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of such indemnified party (and any affiliate through which any Underwriter may be acting) shall have the same rights to contribution as the indemnified party, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters shall have
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the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s common stock or debt securities shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iii) there shall have occurred a material disruption in securities settlement, payment or clearance services in the United States or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the affiliates, officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration, Fax: (646) 834-8133; BofA Securities, Inc., 114 West 47th Street, NY8-114-07-01, New York, New York 10036, Attention: High Grade Debt Capital Markets Transaction Management/Legal, Fax: 212-901-7881; J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017, Attn: Investment Grade Syndicate Desk, Fax: (212) 834-6081; Mizuho Securities USA LLC, 1271 Avenue of the Americas, New York, New York 10020, Attention: Debt Capital Markets, Email: BA_DCM_Notices@mizuhogroup.com and SMBC Nikko Securities America, Inc., 277 Park Avenue, New York, NY 10172, Attention: Debt Capital Markets, Email: NikkoGCNotices@smbcnikko-si.com, or, if sent to the Company, will be mailed, delivered or telefaxed to Zimmer Biomet Holdings, Inc., Chad F. Phipps, Senior Vice President, Chief Legal and Corporate Affairs Officer and Secretary, Fax: (574) 372-4302 and confirmed to it at 345 East Main Street, Warsaw, Indiana 46580, attention of the Legal Department.
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13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the affiliates, officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and each Underwriter and any affiliate through which it may be acting, on the other, (b) each Underwriter is acting as principal and not as an agent or fiduciary of the Company and (c) the engagement of each Underwriter by the Company in connection with the offering of the Securities and the process leading up to the offering is as an independent contractor and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any Underwriter has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that any Underwriter has rendered advisory services of any nature or respect, or owes an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
15. Integration. 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.
16. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
19. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
20. Definitions. The terms that follow, when used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Applicable Time” shall mean 2:25 p.m. (New York City time) on the date of this Agreement.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Applicable Time.
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“Business Day” shall mean any day, other than (1) a Saturday, (2) a Sunday or (3) a day on which banking institutions in New York City are authorized or required by law or executive order to close.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Applicable Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereof, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Applicable Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements, and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 401”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B”, “Rule 433”, “Rule 456”, “Rule 457” and “Rule 462” refer to such rules under the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
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“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
21. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) As used in this Section 21:
| i. | “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). |
| ii. | “Covered Entity” means any of the following: |
| (1) | a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); |
| (2) | a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or |
| (3) | a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
| iii. | “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. |
| iv. | “U.S. Special Resolution Regime” means each of (x) the U.S. Federal Deposit Insurance Act and the regulations promulgated thereunder and (y) Title II of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder. |
22. Submission to Jurisdiction. The parties hereto agree that any dispute, legal action, suit or proceeding arising out of or relating to this Agreement, the Final Prospectus or the
26
offering of the Securities (each, a “Related Proceeding”) must be brought exclusively in any New York state or federal court located in the Borough of Manhattan in New York City or in any state or federal appellate court therein (collectively the “Designated Courts”). Each party hereto hereby consents and submits to the exclusive jurisdiction of the Designated Courts over any Related Proceeding. No Related Proceeding may be brought in any other forum. Each party hereto hereby irrevocably waives all claims of immunity from jurisdiction and any objection which such party may now or hereafter have to the laying of venue of any Related Proceeding in any Designated Court, including any right to object on the basis that any Related Proceeding brought in any Designated Court has been brought in an improper or inconvenient forum or venue.
23. Electronic Signatures. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
27
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the Underwriters.
| Very truly yours, | ||
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | /s/ Pradipto Bagchi | |
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| BARCLAYS CAPITAL INC. | ||
| By: | /s/ James Gutow | |
| Name: James Gutow | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| BOFA SECURITIES, INC. | ||
| By: | /s/ Sandeep Chawla | |
| Name: Sandeep Chawla | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| J.P. MORGAN SECURITIES LLC | ||
| By: | /s/ Som Bhattacharyya | |
| Name: Som Bhattacharyya | ||
| Title: Executive Director | ||
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
| MIZUHO SECURITIES USA LLC | ||
| By: | /s/ Joseph Santaniello | |
| Name: Joseph Santaniello | ||
| Title: Managing Director | ||
The foregoing Agreement is
hereby confirmed and accepted as
of the date first set forth above.
| SMBC NIKKO SECURITIES AMERICA, INC. | ||
| By: | /s/ Timothy Blair | |
| Name: Timothy Blair | ||
| Title: Managing Director | ||
SCHEDULE I
| Underwriters |
Principal Amount of the Securities to be Purchased |
|||
| Barclays Capital Inc. |
$ | 71,000,000 | ||
| BofA Securities, Inc. |
66,000,000 | |||
| J.P. Morgan Securities LLC |
66,000,000 | |||
| Mizuho Securities USA LLC |
66,000,000 | |||
| SMBC Nikko Securities America, Inc. |
66,000,000 | |||
| DNB Carnegie, Inc. |
30,000,000 | |||
| BNP Paribas Securities Corp. |
15,000,000 | |||
| Citigroup Global Markets Inc. |
15,000,000 | |||
| Goldman Sachs & Co. LLC |
15,000,000 | |||
| HSBC Securities (USA) Inc. |
15,000,000 | |||
| Morgan Stanley & Co. LLC |
15,000,000 | |||
| RBC Capital Markets, LLC |
15,000,000 | |||
| UBS Securities LLC |
10,000,000 | |||
| U.S. Bancorp Investments, Inc. |
10,000,000 | |||
| Academy Securities, Inc. |
6,250,000 | |||
| Cabrera Capital Markets LLC |
6,250,000 | |||
| Loop Capital Markets LLC |
6,250,000 | |||
| R. Seelaus & Co., LLC |
6,250,000 | |||
|
|
|
|||
| Total |
$ | 500,000,000 | ||
|
|
|
|||
SCHEDULE II
| 1. | Issuer Free Writing Prospectus, dated November 5, 2026, relating to the Securities, substantially in the form of Schedule III hereto. |
SCHEDULE III
See attached.
Zimmer Biomet Holdings, Inc.
Pricing Term Sheet
$500,000,000 5.850% Notes due 2036
November 5, 2026
The information in this pricing term sheet (the “Pricing Term Sheet”) supplements the information in Zimmer Biomet Holdings, Inc.’s preliminary prospectus supplement, dated November 5, 2026, relating to the Notes (as defined below) (the “Preliminary Prospectus”) and supersedes the information in the Preliminary Prospectus to the extent inconsistent with the information in the Preliminary Prospectus. Otherwise, this Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Prospectus. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Preliminary Prospectus.
| Issuer: | Zimmer Biomet Holdings, Inc. (the “Company”) | |
| Title of Securities: | $500,000,000 5.850% Notes due 2036 (the “Notes”) | |
| Principal Amount: | $500,000,000 | |
| Price to Public: | 99.993% | |
| Gross Proceeds: | $499,965,000 | |
| Underwriting Discount: | 0.650% | |
| Net Proceeds (before expenses): | $496,715,000 | |
| Maturity Date: | November 12, 2036 | |
| Coupon: | 5.850% | |
| Yield to Maturity: | 5.851% | |
| Benchmark Treasury: | 4.625% UST due August 15, 2036 | |
| Benchmark Treasury Price; Yield: | 98-13 / 4.831% | |
| Spread to Benchmark Treasury: | T + 102 basis points | |
| Interest Payment Dates: | Semi-annually in arrears on May 12 and November 12 of each year, commencing on May 12, 2027 | |
| Redemption Provisions: | Prior to August 12, 2036 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: | |
| (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve | ||
| 30-day months) at the Treasury Rate, plus 20 basis points less (b) interest accrued to the date of redemption, and | ||
| (2) 100% of the principal amount of the Notes to be redeemed, | ||
| plus, in either case, accrued and unpaid interest thereon to the redemption date. | ||
| On or after the 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 the redemption date. | ||
| Repurchase at the Option of Holders upon a Change of Control Repurchase Event: | If a Change of Control Repurchase Event occurs with respect to the Notes, the Company will be required to offer to repurchase the Notes at a repurchase price equal to 101% of their principal amount, plus accrued and unpaid interest on the Notes to be repurchased to the date of repurchase, unless the Notes have been previously redeemed or called for redemption. | |
| CUSIP: | 98956P BD3 | |
| ISIN: | US98956PBD33 | |
| Ratings*: | Intentionally Omitted | |
| Trade Date: | November 5, 2026 | |
| Settlement Date**: | November 12, 2026 (T+4) | |
| Joint Book-Running Managers: | Barclays Capital Inc. BofA Securities, Inc. J.P. Morgan Securities LLC Mizuho Securities USA LLC SMBC Nikko Securities America, Inc. DNB Carnegie, Inc. BNP Paribas Securities Corp. Citigroup Global Markets Inc. Goldman Sachs & Co. LLC HSBC Securities (USA) Inc. Morgan Stanley & Co. LLC RBC Capital Markets, LLC | |
| Senior Co-Managers: | UBS Securities LLC U.S. Bancorp Investments, Inc. | |
| Co-Managers: | Academy Securities, Inc. Cabrera Capital Markets LLC Loop Capital Markets LLC R. Seelaus & Co., LLC | |
| Form of Notes: | Global notes deposited with The Depository Trust Company. | |
| Denominations: | Minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. | |
| Concurrent Offering: | Shortly prior to the commencement of this offering, the Company commenced an offering, by means of a separate prospectus supplement, of an aggregate principal amount of €500,000,000 euro-denominated notes (the “Euro Notes” and such offering, the “Euro Notes Offering”). Neither this offering nor the Euro Notes Offering is contingent on the completion of the other, so it is possible that this offering is completed and the Euro Notes Offering is not completed, and vice versa. The Company cannot assure you that the Euro Notes Offering will be completed on the terms described in the Preliminary Prospectus, or at all. This Pricing Term Sheet is not an offer to sell or a solicitation of an offer to buy any Euro Notes. | |
| * | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal by the assigning rating organization at any time. Each rating should be evaluated independently of any other rating. |
| ** | Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes prior to the first business day before the delivery of the Notes will be required to specify alternative settlement arrangements to prevent a failed settlement. Purchasers of the Notes who wish to trade Notes prior to their date of delivery hereunder should consult their own advisors. |
This Pricing Term Sheet supplements the Preliminary Prospectus issued by the Company on November 5, 2026 relating to its prospectus dated February 25, 2025, Registration Statement No. 333-285227.
The Company has filed a registration statement (including a base prospectus) and the Preliminary Prospectus with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read the Preliminary Prospectus, the accompanying base prospectus in that registration statement, this Pricing Term Sheet and other documents the Company has filed with the SEC for more complete information about the Company and this offering. You may obtain these documents for free by visiting EDGAR on the SEC’s website at www.sec.gov. Alternatively, the Company, any underwriter or any dealer participating in the offering will arrange to send you the Preliminary Prospectus, the final prospectus supplement (when available) and the accompanying base prospectus if you request it by calling Barclays Capital Inc. toll-free at 1 (888) 603-5847, BofA Securities, Inc. toll-free at 1 (800) 294-1322, J.P. Morgan Securities LLC collect at 1 (212) 834-4533, Mizuho Securities USA LLC toll-free at 1 (866) 271-7403 and SMBC Nikko Securities America, Inc. toll-free at 1-888-868-6856.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Exhibit 4.2
ZIMMER BIOMET HOLDINGS, INC.
€500,000,000 4.375% Notes due 2033
THIRTEENTH SUPPLEMENTAL INDENTURE
Dated as of November 12, 2026
to
Indenture dated as of November 17, 2009
COMPUTERSHARE TRUST COMPANY, N.A.
Trustee
Table of Contents
| Page | ||||
| ARTICLE I | ||||
| DEFINITIONS AND INCORPORATION BY REFERENCE | ||||
| SECTION 1.01. Application of this Thirteenth Supplemental Indenture |
1 | |||
| SECTION 1.02. Definitions |
2 | |||
| SECTION 1.03. Incorporation by Reference of Trust Indenture Act |
6 | |||
| ARTICLE II | ||||
| CREATION, FORM, | ||||
| TERMS, CONDITIONS AND COVENANTS OF THE SECURITIES | ||||
| SECTION 2.01. Creation of the Notes |
6 | |||
| SECTION 2.02. Form of the Notes |
6 | |||
| SECTION 2.03. Terms, Conditions and Covenants of the Notes |
7 | |||
| SECTION 2.04. [Reserved] |
8 | |||
| SECTION 2.05. Ranking |
8 | |||
| SECTION 2.06. Sinking Fund |
8 | |||
| SECTION 2.07. [Reserved] |
8 | |||
| SECTION 2.08. Payment of Additional Amounts |
9 | |||
| SECTION 2.09. Paying Agent and Security Registrar |
11 | |||
| SECTION 2.10. Authenticating Agent |
12 | |||
| SECTION 2.11. Issuance in Euro |
12 | |||
| ARTICLE III | ||||
| REDEMPTION | ||||
| SECTION 3.01. Optional Redemption |
13 | |||
| SECTION 3.02. Tax Redemption |
14 | |||
| ARTICLE IV | ||||
| CHANGE OF CONTROL | ||||
| SECTION 4.01. Repurchase at the Option of Holders Upon a Change of Control Repurchase Event |
14 | |||
ii
| ARTICLE V | ||||
| EXECUTION OF NOTES; TRANSFER AND EXCHANGE | ||||
| SECTION 5.01. Execution of Notes |
16 | |||
| SECTION 5.02. Transfer and Exchange |
16 | |||
| ARTICLE VI | ||||
| TRUSTEE | ||||
| SECTION 6.01. Corporate Trust Office |
17 | |||
| SECTION 6.02. Certain Roles |
17 | |||
| SECTION 6.03. Recitals of Fact |
18 | |||
| SECTION 6.04. Successor |
18 | |||
| ARTICLE VII | ||||
| MISCELLANEOUS PROVISIONS | ||||
| SECTION 7.01. Ratification of Original Indenture |
19 | |||
| SECTION 7.02. Effect of Headings |
19 | |||
| SECTION 7.03. Successors and Assigns |
19 | |||
| SECTION 7.04. Separability Clause |
19 | |||
| SECTION 7.05. Governing Law |
19 | |||
| SECTION 7.06. Counterparts |
19 | |||
EXHIBITS
| EXHIBIT A | Form of Global Note |
iii
THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of November 12, 2026 (this “Thirteenth Supplemental Indenture”), between ZIMMER BIOMET HOLDINGS, INC. (f/k/a ZIMMER HOLDINGS, INC.), a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal offices at 345 East Main Street, Warsaw, Indiana, and COMPUTERSHARE TRUST COMPANY, N.A., a national banking association, as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company executed and delivered to the Trustee an Indenture, dated as of November 17, 2009 (the “Original Indenture”), providing for the issuance by the Company from time to time of debt securities evidencing unsecured and unsubordinated indebtedness of the Company to be issued in one or more series;
WHEREAS, the Original Indenture provides, among other things, that by means of a supplemental indenture, the Company and the Trustee may, without the consent of Holders, create one or more series of the Company’s debt securities and establish the form and terms and conditions thereof;
WHEREAS, the Company intends by this Thirteenth Supplemental Indenture to create and provide for the issuance of one new series of debt securities to be designated as the “4.375% Notes due 2033” (the “Notes”);
WHEREAS, the Board of Directors of the Company has authorized the execution and delivery of the Thirteenth Supplemental Indenture, the issuance of the Notes and the form, terms, conditions and covenants of the Notes pursuant to Sections 201, 301 and 901 of the Original Indenture; and
WHEREAS, all acts and things necessary to make the Notes, when the Notes have been executed by the Company, authenticated by the Authenticating Agent, issued upon the terms and subject to the conditions set forth hereinafter and in the Original Indenture and delivered as provided in the Indenture against payment therefor, valid, binding and legal obligations of the Company, enforceable against the Company according to their terms, and all actions required to be taken by the Company under the Original Indenture to make this Thirteenth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Application of this Thirteenth Supplemental Indenture. Notwithstanding any other provision of this Thirteenth Supplemental Indenture, the provisions of this Thirteenth Supplemental Indenture, including the covenants set forth herein, are expressly and solely for the
benefit of the Notes. The Notes constitute a series of Securities as provided in Section 301 of the Original Indenture.
SECTION 1.02. Definitions. Capitalized terms used in this Thirteenth Supplemental Indenture and not otherwise defined herein shall have the meanings ascribed to them in the Original Indenture. In addition, the following terms shall have the following meanings to be equally applicable to both the singular and the plural forms of the terms defined:
“Additional Amounts” has the meaning set forth in Section 2.08 hereof.
“Agency Agreement” means the Agency Agreement by and among the Company, the Paying Agent, the Security Registrar, and the Trustee effective as of November 12, 2026.
“Authenticating Agent” means U.S. Bank Trust Company, National Association or any successor entity thereto.
“Below Investment Grade Rating Event” means, with respect to the Notes, the Notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company 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 applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event). Neither the Trustee nor any Paying Agent shall be responsible for monitoring the Company’s rating status, making any request upon any Rating Agency, or determining whether any Below Investment Grade Rating Event with respect to the Notes has occurred.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a (1) day on which banking institutions in New York, New York or in the Place of Payment for the Notes are authorized or obligated by law or executive order to close, or (2) day on which the real time gross settlement system operated by the Eurosystem (the “T2 system”) (or any successor thereto) is closed.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries;
2
(2) the adoption of a plan relating to the Company’s liquidation or dissolution; or
(3) the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one or more of its wholly-owned subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock.
“Change of Control Repurchase Event” means, with respect to the Notes, the occurrence of both a Change of Control and a Below Investment Grade Rating Event with respect to the Notes.
“Clearstream” means Clearstream Banking S.A. or any successor securities clearing agency.
“Company” has the meaning set forth in the Recitals hereto.
“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German government bond whose maturity is closest to the maturity of the Notes to be redeemed, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.
“Comparable Government Bond Rate” means the yield to maturity, expressed as a percentage (rounded to three decimal places, 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, of the applicable Comparable Government Bond on the basis of the middle market price of such Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by the independent investment bank selected by the Company.
“Corporate Trust Office” shall be for the purposes of (a) the definition of “Responsible Officer” in the Indenture and Sections 105, 603, 609 and 610 in the Original Indenture, the office of the Trustee, which office is, at the date of this Thirteenth Supplemental Indenture, located at 1505 Energy Park Drive, St. Paul, Minnesota 55108, Attention: CCT Administrator for Zimmer Biomet, (b) Section 305 of the Original Indenture and the provisions of Section 1002 of the Original Indenture relating to the registration of transfer or exchange of the Notes, the office of the Security Registrar, which office is, as of the date of this Thirteenth Supplemental Indenture, 60 Livingston Avenue, Saint Paul, Minnesota 55107, (c) the other provisions of Section 1002 of the Original Indenture, the office of the Paying Agent, which office is, at the date of this Thirteenth Supplemental Indenture, 125 Old Broad Street, Fifth Floor, London EC2N 1AR, United Kingdom, Attention: Relationship Management, or (d) in each case such other addresses as to which the Trustee, the Security Registrar or the Paying Agent, as the case may be, may give notice to the Company.
3
“Depository” means, with respect to the Notes, U.S. Bank Europe DAC, or its nominee, as common depositary, on behalf of Euroclear and Clearstream, or any successor entity thereto.
“Directive” has the meaning set forth in Section 2.08 hereof.
“Dollar” and “$” means the lawful currency of the United States of America.
“€” or “euro” means 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.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Global Note” means a single permanent fully-registered global note in book-entry form, without coupons, deposited with, or on behalf of, the Depository or its nominee, and registered in the name of the Depository or its nominee, substantially in the form of Exhibit A attached hereto. A Global Note is a “Global Security” within the meaning of the Original Indenture.
“Indenture” means the Original Indenture as supplemented by this Thirteenth Supplemental Indenture.
“Interest Payment Date” has the meaning set forth in Section 2.03(c) hereof.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“Market Exchange Rate” means the noon buying rate in the City of New York for cable transfers of euro as certified for customs purposes (or, if not so certified, as otherwise determined) by the Federal Reserve Bank of New York.
“Maturity Date” has the meaning set forth in Section 2.03(b) hereof.
“Moody’s” means Moody’s Ratings and any successor to its rating agency business.
“Notes” has the meaning set forth in the Recitals hereto.
“Original Indenture” has the meaning set forth in the Recitals hereto.
“Par Call Date” means August 12, 2033.
“Paying Agent” means U.S. Bank Europe DAC, UK Branch and its successors.
“Paying Agent Office” means the designated office of the Paying Agent of which the corporate trust paying agent office of the Paying Agent shall, at any particular time, be
4
administered, which office is, at the date of this Thirteenth Supplemental Indenture, located at 125 Old Broad Street, Fifth Floor, London EC2N 1AR, United Kingdom, Attention: Relationship Management.
“Place of Payment” means the Paying Agent Office or at any other agency as may be appointed from time to time by the Company, subject to Section 2.09 hereof.
“Rating Agency” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P 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 Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement agency for Moody’s or S&P, as the case may be.
“Redemption Date” means the Business Day on which Notes are redeemed by the Company pursuant to Article III hereof.
“Redemption Price” means the price at which the Notes are redeemed by the Company pursuant to Sections 3.01 or 3.02 hereof.
“Registered Securities” means any Notes which are registered in the Security Register.
“Regular Record Date” has the meaning set forth in Section 2.03(c) hereof.
“Relevant U.S. Taxing Jurisdiction” has the meaning set forth in Section 2.08 hereof.
“Remaining Scheduled Payments” means, with respect to each Note to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date for such redemption (assuming, for this purpose, such Note matures on the Par Call Date); provided, however, that, if such Redemption Date is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such Redemption Date.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Security Registrar” means U.S. Bank Trust Company, National Association or any successor thereto.
“Thirteenth Supplemental Indenture” has the meaning set forth in the Recitals hereto.
“Trustee” has the meaning set forth in the Recitals hereto.
“Voting Stock” means, with respect to any Person, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or Persons performing similar functions) of such Person, even if the right to so vote has been suspended by the happening of such a contingency.
5
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. The Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the Indenture. The following Trust Indenture Act terms have the following meanings:
“indenture securities” means the Notes.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Thirteenth Supplemental Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Securities and Exchange Commission rule have the meanings assigned to them by such definitions.
ARTICLE II
CREATION, FORM,
TERMS, CONDITIONS AND COVENANTS OF THE SECURITIES
SECTION 2.01. Creation of the Notes. In accordance with Section 301 of the Original Indenture, the Company hereby creates the Notes as a separate series of its securities issued pursuant to the Indenture. The Notes shall be issued initially in an aggregate principal amount of €500,000,000, except as permitted by Sections 304, 305 or 306 of the Original Indenture.
SECTION 2.02. Form of the Notes. The Notes shall be issued in the form of one or more Global Notes, duly executed by the Company and authenticated by the Authenticating Agent, which shall be deposited with, or on behalf of, the Depository or its nominee, as common depositary for, and in respect of interests held through, Clearstream and Euroclear, and registered in the name of the Depository or its nominee. The Notes and the Trustee and Authenticating Agent’s Certificate of Authentication in respect thereof shall be substantially in the form of Exhibit A attached hereto. So long as Euroclear or Clearstream or their nominee or the Depository or its nominee is the Holder of a Global Note, Euroclear, Clearstream, the Depository or their respective nominees, as the case may be, shall be considered the sole owner or Holder of the Notes represented by such Global Note for all purposes under the Indenture and the Notes. Except as set forth in Sections 2.03(d) and 5.02 hereof, a Global Note may be transferred, in whole and not in part, only to Euroclear or Clearstream or their respective nominees only through records maintained by Clearstream and Euroclear (with respect to beneficial interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests of beneficial owners), and owners of beneficial interests in such Global Note will not be entitled to have the Notes registered in their names and will not receive or be entitled to receive physical delivery of Notes in definitive form. Payments of principal, interest and Additional
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Amounts, if any, in respect of a Global Note will be made to Euroclear, Clearstream, such nominee or such Depository, as the case may be, as Holder thereof. None of the Company, the Trustee, any underwriter or any affiliate of any of the above or any Person by whom any of the above is “controlled”, as such term is defined in the Securities Act, will have any responsibility or liability for any records relating to or payments made on account of beneficial ownership interests in a Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. For the purposes of this Thirteenth Supplemental Indenture only, the Global Security Legend for the Notes shall be the legend set forth at the beginning of the form of Global Note attached hereto as Exhibit A, and such legend shall apply in lieu of the legend set forth in Section 203(2) of the Original Indenture.
SECTION 2.03. Terms, Conditions and Covenants of the Notes. The Notes shall be governed by all the terms, conditions and covenants of the Original Indenture, as supplemented by this Thirteenth Supplemental Indenture. In particular, the following provisions shall be terms of the Notes:
(a) Title and Aggregate Principal Amount. The title of the Notes shall be as specified in the Recitals; and the aggregate principal amount of the Notes shall be as specified in Section 2.01 of this Article II, except as permitted by Sections 304, 305 or 306 of the Original Indenture.
(b) Stated Maturity. The Notes shall mature, and the unpaid principal thereon shall be payable, on November 12, 2033 (the “Maturity Date”), subject to the provisions of the Original Indenture and Articles III and IV below.
(c) Interest. The rate per annum at which interest shall be payable on the Notes shall be 4.375%. Interest on the Notes shall be payable annually in arrears on November 12 of each year, commencing on November 12, 2027 (each, an “Interest Payment Date”), to the Persons in whose names the applicable Notes are registered in the Security Register applicable to the Notes at the close of business on (i) in the case of Notes represented by a Global Note, the clearing system business day (for this purpose, a day on which Clearstream and Euroclear settle payments in euro) immediately preceding the applicable Interest Payment Date and (ii) in all other cases, 15 calendar days prior to the applicable Interest Payment Date regardless of whether such day is a Business Day (each, a “Regular Record Date”). Interest on the Notes shall 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 November 12, 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. Interest on the Notes shall accrue from and including November 12, 2026. If an Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the related payment will be made on the next Business Day as if it were made on the date the payment was due, and no interest will accrue on the amount so payable for the period from and after that Interest Payment Date or the Maturity Date, as the case may be, to the date the payment is made. Interest payments will include accrued interest from and including the date of original issuance or from and including the last date in respect of which interest has been paid, as the case may be, to, but excluding, the Interest Payment Date or the Maturity Date, as the case may be.
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(d) Registration and Form. The Notes shall be issuable as Registered Securities as provided in Section 2.02 of this Article II, subject to Article V. The Notes shall be issued only in fully registered form without coupons and in minimum denominations of €100,000 or integral multiples of €1,000 above that amount. All payments of principal, premium, Redemption Price and accrued and unpaid interest in respect of the Notes shall be made by the Company in immediately available funds and shall be payable in euro and, subject to Section 2.11(c) hereof, not any other currency.
(e) Defeasance and Covenant Defeasance. The provisions for defeasance in Section 1302 of the Original Indenture, and the provisions for covenant defeasance in Section 1303 of the Original Indenture, shall be applicable to the Notes.
(f) Further Issues. Notwithstanding anything to the contrary contained herein or in the Original Indenture (but subject to the terms of this Section 2.03(f)), the Company may, from time to time, without the consent of or notice to the Holders, create and issue further Securities having the same ranking and terms and conditions as the Notes in all respects, except for the issue date and, in some cases, the public offering price and the first Interest Payment Date. Any additional Securities issued in this manner shall be consolidated with and shall form a single series of Securities under the Indenture with the previously issued Notes; provided that if such additional Securities are not fungible with the previously issued Notes for U.S. federal income tax purposes, such additional Securities will have a separate International Securities Identification Number. Notice of the issuance of any such additional Securities shall be given to the Trustee and a new supplemental indenture shall be executed in connection therewith. No such additional Securities may be issued if an Event of Default has occurred and is continuing with respect to the Notes.
(g) Other Terms, Conditions and Covenants. The Notes shall have such other terms, conditions and covenants as provided in the form thereof attached as Exhibit A.
SECTION 2.04. [Reserved]
SECTION 2.05. Ranking. The Notes shall be general unsecured obligations of the Company. The Notes shall rank pari passu in right of payment with all unsecured and unsubordinated indebtedness of the Company and senior in right of payment to all subordinated indebtedness of the Company.
SECTION 2.06. Sinking Fund. The Notes will not be entitled to any sinking fund.
SECTION 2.07. [Reserved]
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SECTION 2.08. Payment of Additional Amounts. All payments in respect of the Notes shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature, imposed or levied by the United States, any political subdivision thereof or any taxing authority thereof or therein (a “Relevant U.S. Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company shall pay to each Holder who is not a United States Person (as defined below) such additional amounts (“Additional Amounts”) on such Notes as are necessary in order that the net payment of the principal of, and premium, if any, and interest on, such Notes to such Holder, after such withholding or deduction, will not be less than the amount provided in the Notes to be then due and payable, subject to the exceptions described below. This obligation to pay Additional Amounts shall not apply:
(1) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder (or the beneficial owner for whose benefit such Holder holds the Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a Person holding a power over an estate or trust administered by a fiduciary Holder, being considered as:
(a) being or having been engaged in a trade or business in a Relevant U.S. Taxing Jurisdiction or having or having had a permanent establishment in a Relevant U.S. Taxing Jurisdiction or having or having had a qualified business unit which has the Dollar as its functional currency;
(b) having a current or former connection with a Relevant U.S. Taxing Jurisdiction (other than a connection arising solely as a result of the ownership of such Notes, the receipt of any payment or the enforcement of any rights thereunder) or being considered as having such relationship, including being or having been a citizen or resident of a Relevant U.S. Taxing Jurisdiction or treated as having been a resident of a Relevant U.S. Taxing Jurisdiction;
(c) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States income tax purposes or a foreign personal holding company or corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury regulations thereunder or any successor provision; or
(e) being or having been 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, as described in Section 881(c)(3)(A) of the Code or any successor provision;
(2) to any Holder that is not the sole beneficial owner of such Notes, or a portion of such Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of any Additional Amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
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(3) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder, beneficial owner or any other person to (a) submit an applicable United States Internal Revenue Service (“IRS”) Form W-8BEN or W-8BEN-E (or appropriate substitute or successor form with any required attachments) to establish its status as a non-United States Person as required for purposes of the portfolio interest exemption or IRS Form W-9 to establish its status as a United States Person or (b) comply with other certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant U.S. Taxing Jurisdiction of the Holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the Relevant U.S. Taxing Jurisdiction or by an applicable income tax treaty to which the Relevant U.S. Taxing Jurisdiction 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 the Paying Agent (as the case may be) from the payment;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for 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;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(7) to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Council Directive on the taxation of savings (the “Directive”);
(8) to any tax, assessment or other governmental charge required to be withheld by the Paying Agent from any payment of principal of, or premium, if any, or interest on such Note, if such payment can be made without such withholding by at least one other paying agent;
(9) to any tax, assessment or other governmental charge that would not have been imposed or levied but for the presentation by the Holder of such 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;
(10) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code, the Foreign Account Tax Compliance Act, and related Treasury regulations and pronouncements, or any successor provisions and any regulations or official law, agreement or interpretations thereof implementing an intergovernmental approach thereto; or
(11) in the case of any combination of items (1) through (10) above.
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The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to such Notes. Except as specifically provided in this Section 2.08, the Company shall not be required to make any payment for any tax, duty, assessment or governmental charge of whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts.
As used in this Section 2.08 and in Section 3.02 hereof, the term “United States” means the United States of America (including the states and the District of Columbia and any political subdivision thereof), and the term “United States Person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, including an entity treated as a corporation for United States income tax purposes, or any estate or trust the income of which is subject to United States federal income taxation regardless of its source, or a trust that (1) is subject to the primary supervision of a United States court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a United States Person for U.S. federal income tax purposes.
Whenever in the Indenture (including the Notes) there is referenced, in any context, the payment of amounts based on the payment of principal of, or premium, if any, or interest on, the Notes, or any other amount payable thereunder or with respect thereto, such reference will be deemed to include the payment of Additional Amounts as described under this Section 2.08 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
SECTION 2.09. Paying Agent and Security Registrar.
The Company shall maintain a Paying Agent authorized by the Company to pay the principal of, or any premium or interest on, any Notes on behalf of the Company. The Company hereby authorizes U.S. Bank Europe DAC, UK Branch to initially act as the Paying Agent. The Company shall maintain a Security Registrar for the purpose of registering and transferring the Notes. The Company hereby authorizes U.S. Bank Trust Company, National Association to initially act as Security Registrar. Principal and interest on the Notes will be payable, and the Notes will be transferable or exchangeable, at the Paying Agent Office. Payment of interest on the Notes may be made at the Company’s option by check sent to the Holders.
Payments (including principal, premium and interest) with respect to the Notes if in certificated form will be payable, and the Notes will be transferable or exchangeable, at the Paying Agent Office, or, at the Company’s option, by check sent to the Holders thereof at the respective addresses set forth in the Security Register, provided that all payments (including principal, premium and interest) on Notes in certificated form, for which the Holders thereof have given wire transfer instructions to the Paying Agent at least ten Business Days prior to the applicable payment date, will be required to be made by wire transfer of immediately available funds to the accounts specified by the Holders thereof, subject, in each case, to surrender of the Notes to the Paying Agent in the case of payments of principal or premium.
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No service charge will be made for any transfer or exchange of the Notes, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
Upon notice to the Trustee, the Company may change the Paying Agent or Security Registrar.
SECTION 2.10. Authenticating Agent.
(a) For the purposes of this Thirteenth Supplemental Indenture only, the third sentence of the first paragraph of Section 614 of the Original Indenture entitled “Appointment of Authenticating Agent” is hereby amended and restated as follows:
“Each Authenticating Agent shall be acceptable to the Company and shall at all times be an organization organized and doing business under the laws of its jurisdiction of organization, authorized under such laws to act as Authenticating Agent.”
(b) Pursuant to Section 614 of the Original Indenture, the Trustee hereby appoints U.S. Bank Trust Company, National Association as an Authenticating Agent to authenticate and deliver the Notes on behalf of the Trustee. U.S. Bank Trust Company, National Association as an Authenticating Agent is acceptable to the Company.
SECTION 2.11. Issuance in Euro.
(a) Initial Holders will be required to pay for the Notes in euro, and principal, including any payments made upon any redemption or repurchase of the Notes, premium, if any, and interest payments in respect of the Notes will be payable in euro.
(b) Distributions of principal, premium, if any, and interest with respect to the Global Note will be credited in euro to the extent received by Euroclear or Clearstream from the Paying Agent to the cash accounts of Euroclear or Clearstream customers in accordance with the relevant system’s rules and procedures.
(c) If euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or the euro is no longer used by the member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of the Notes will be made in Dollars until euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will be converted by the Company to Dollars on the basis of the Market Exchange Rate on the second Business Day before that payment is due, or if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate on or before the date that payment is due. Any payment in respect of the Notes so made in Dollars will not constitute an Event of Default under the Notes or the Indenture. Neither the Trustee nor the Paying Agent shall be responsible for obtaining exchange rates, effecting conversions or otherwise handling re-denominations.
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ARTICLE III
REDEMPTION
SECTION 3.01. Optional Redemption.
(a) Prior to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(i) (a) the sum of the present values of the Remaining Scheduled Payments of principal and interest on the Notes to be redeemed, discounted to the Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate, plus 20 basis points less (b) interest accrued to the Redemption Date; and
(ii) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
(b) On or after the 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 the Redemption Date.
(c) Accrued Interest. Notwithstanding subsections (a) and (b) of this Section 3.01, installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date will be payable on such Interest Payment Date to the Holders as of the close of business on the relevant Regular Record Date, according to the terms of the Notes and the Indenture. On and after the Redemption Date, interest will cease to accrue on the Notes or any portion of the Notes that are called for redemption (unless the Company defaults in the payment of the Redemption Price and accrued interest).
(d) Notice. Notwithstanding Section 1104 of the Original Indenture, notices of any optional redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the applicable procedures of Euroclear or Clearstream) at least 10 but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed. The Company shall notify the Trustee of the Redemption Price no later than two Business Days prior to the Redemption Date (or such later date as the Trustee may agree), and the Trustee will not be responsible for such calculation nor shall the Trustee have any duty to monitor the accuracy of any calculations made by the Company. The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
(e) Payment. On or prior to 10:00 a.m. (or such later time as may be agreed between the Company and the Paying Agent), London time, on the Redemption Date, the Company shall deposit with the Paying Agent an amount of money sufficient to pay the Redemption Price of, and accrued interest on, the Notes to be redeemed to, but excluding, the Redemption Date.
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(f) Selection of Notes. If less than all of the Notes are to be redeemed, selection of the Notes for redemption will be made in accordance with the procedures of the clearing systems, and in the case the Notes are no longer in global form or the clearing systems have no procedures, the Paying Agent will select the particular Notes or portions thereof for redemption from the outstanding Notes not previously called by such method as the Paying Agent deems appropriate and fair. No Notes of a principal amount of €100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will 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 will 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 in global form, the redemption of the Notes shall be done in accordance with the policies and procedures of the applicable Depository.
SECTION 3.02. Redemption for Tax Reasons. The Notes are redeemable in whole, but not in part, at any time, at the option of the Company, upon (notwithstanding Section 1104 of the Original Indenture) not less than 10 days’ and not more than 60 days’ prior notice to the Holders of the Notes to be redeemed, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed on that Redemption Date, plus accrued and unpaid interest on the Notes being redeemed to, but excluding, the Redemption Date if, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of a Relevant U.S. Taxing Jurisdiction, or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice), which change or amendment is announced or becomes effective on or after November 5, 2026, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, will become obligated to pay Additional Amounts under Section 2.08 hereof with respect to the Notes.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.01. Repurchase at the Option of Holders Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to the Notes, unless the Company has exercised its right to redeem the Notes pursuant to the Indenture, the Company shall make an offer to each Holder of the Notes to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 above that amount) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase.
(b) Within 30 days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Company will send (or with respect to the Global Note, to the extent permitted or required by applicable Clearstream and Euroclear procedures or regulations, send electronically) a notice to each Holder of the Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent. The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
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(c) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes or the Indenture by virtue of such conflict.
(d) On the Change of Control Repurchase Event payment date, the Company will, to the extent lawful:
(i) accept for payment all the Notes or portions of the Notes (in minimum denominations of €100,000 and integral multiples of €1,000 above that amount) properly tendered pursuant to its offer;
(ii) deposit on or before 10:00 a.m. (or such later time as may be agreed between the Company and the Paying Agent), London time, with the Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes or portions of the Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee, or to the Paying Agent on behalf of the Trustee, the Notes properly tendered and accepted for repurchase, together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company.
(e) The Paying Agent will promptly send to each Holder of Notes properly tendered the purchase price for the Notes, and the Trustee or the Authenticating Agent, as the case may be, will promptly authenticate and send (or cause to be transferred by book-entry) (or, if a Global Note, to be adjusted on the Schedule of Exchanges attached thereto) to each Holder a new Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note will be in a minimum principal amount of €100,000 or an integral multiple of €1,000 above that amount.
(f) The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if 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 under this Article IV and such third party purchases all Notes properly tendered and not withdrawn under its offer.
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ARTICLE V
EXECUTION OF NOTES; TRANSFER AND EXCHANGE
SECTION 5.01. Execution of Notes. For purposes of this Thirteenth Supplemental Indenture and the Notes, the first sentence of Section 202 of the Original Indenture is replaced in its entirety by the following:
“An Officer of the Company shall sign the Securities for the Company, by manual, pdf or facsimile signature.”
SECTION 5.02. Transfer and Exchange. For purposes of this Thirteenth Supplemental Indenture and the Notes, Section 203(1) of the Original Indenture is replaced in its entirety by the following:
“SECTION 203. Transfer and Exchange.
(1) Transfer and Exchange of Global Securities. A Global Security may not be transferred as a whole except by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or to another nominee of the Depository, or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository. U.S. Bank Europe DAC initially has been appointed to act as Depository with respect to the Global Securities. Global Securities shall be exchanged by the Company for Definitive Securities if:
(A) the Company has been notified that both Clearstream Banking S.A. and Euroclear Bank SA/NV have been closed for business for a continuous period of 14 days (other than by reason of holiday, statutory or otherwise) or have announced an intention permanently to cease business or have in fact done so and no successor clearing system is available;
(B) the Company, in its sole discretion and subject to the procedures of the Depository, notifies the Trustee and Paying Agent in writing that the Global Securities (in whole but not in part) should be exchanged for Definitive Securities; or
(C) there shall have occurred and be continuing an Event of Default under this Indenture.
Upon the occurrence of any of the preceding events in (A) or (B) above, the Company will notify the Trustee in writing that, upon surrender by the Participants of their interest in such Global Securities, Definitive Securities will be issued to each Person that such Participants and the Depository identify as being the beneficial owner of the related Securities. Beneficial interests in Global Securities may be exchanged for Definitive Securities of this series upon request but only upon at least 30 days’ prior written notice given to the Trustee by or on behalf of the Depository in accordance with customary procedures. Global Securities also may be exchanged or replaced, in whole or in part, as provided in Sections 304, 305 and 306 hereof. Except as otherwise provided above in this Section 203, every Security authenticated and delivered in exchange for, or in lieu of, a Global Security or any portion thereof, pursuant to this Section 203 or Sections 304, 305 or 306 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Security. A Global Security may not be exchanged for another Security other than as provided in this Section 203(1).
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In all cases, Definitive Securities delivered in exchange for any Global Security or beneficial interest therein will be registered in the names, and issued in any approved denominations, requested by or on behalf of Clearstream Banking S.A. and Euroclear Bank SA/NV (in accordance with their customary procedures).”
ARTICLE VI
TRUSTEE
SECTION 6.01. Corporate Trust Office. U.S. Bank Europe DAC, UK Branch is appointed as the Paying Agent for the Notes and U.S. Bank Trust Company, National Association is appointed as the Security Registrar and the Authenticating Agent for the Notes, including in each case for the purposes of Section 1002 of the Original Indenture. The Notes may be presented for payment at the Paying Agent Office or at any other agency as may be appointed from time to time by the Company, subject to Section 2.09 hereof, and such place or places shall be the Place of Payment for the purposes of the Indenture. Notwithstanding Section 1002 of the Original Indenture or anything else to the contrary in the Indenture, the office or agency of the Security Registrar need not be maintained in the Place of Payment for the Notes.
SECTION 6.02. Certain Roles.
(a) Each reference to the Trustee or any Agent in the Original Indenture, to the extent it relates to the performance of duties or the exercise of rights assigned by this Thirteenth Supplemental Indenture, the Notes, or the Agency Agreement, in each case to the Paying Agent, shall be deemed to be a reference to the Paying Agent.
(b) The references to the Trustee in Section 201 of the Original Indenture, the reference to the Trustee in Section 309 of the Original Indenture, each related reference in the Original Indenture to the Trustee receiving Securities for cancellation or cancelling Securities (including such references contained in the definition of “Outstanding” and in Sections 202 and 401 of the Original Indenture), and each other reference to the Trustee or any Agent, to the extent it relates to the performance of duties or the exercise of rights assigned by this Thirteenth Supplemental Indenture, the Notes, or the Agency Agreement, in each case to the Security Registrar, shall be deemed to be a reference to the Security Registrar.
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(c) Each reference to the Trustee or any Agent, to the extent it relates to the performance of duties or the exercise of rights assigned by this Thirteenth Supplemental Indenture, the Notes, or the Agency Agreement, in each case to the Authenticating Agent, shall be deemed to be a reference to the Authenticating Agent.
(d) Notwithstanding anything to the contrary, the Trustee, Paying Agent, Security Registrar and Authenticating Agent may, with the consent of the Company, provide for the performance of any of the duties to be performed by any of them under the Indenture or the Notes to be performed by another of them, subject to the terms of the Indenture, and any duties so performed shall be deemed to have been performed by the appropriate party for all purposes under the Indenture and the Notes.
SECTION 6.03. Recitals of Fact. The Trustee makes no representation as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Thirteenth Supplemental Indenture or the Notes or the due execution thereof by the Company, except for any certificate of authentication in accordance with the Indenture. The recitals of fact contained herein shall be taken as the statements solely of the Company and the Trustee assumes no responsibility for the correctness thereof, except for any certificate of authentication in accordance with the Indenture. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the Company’s rating status, making any request upon any Rating Agency or determining whether any Below Investment Grade Rating Event with respect to the Notes has occurred. The Trustee is hereby authorized to enter into the Agency Agreement and perform its obligations and exercise its rights thereunder in accordance with its terms. All of the provisions contained in the Indenture in respect of the rights, powers, privileges, and immunities of the Trustee shall be applicable in respect of this Thirteenth Supplemental Indenture and the Agency Agreement as fully and with like force and effect as though set forth in full herein and therein. The parties hereto acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Trustee in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties hereby agree that they shall provide the Trustee with such information as it may request including, but not limited to, each party’s name, physical address, tax identification number and other information that will help the Trustee identify and verify each party’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
SECTION 6.04. Successor. Any corporation or association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association to which all or substantially all of the corporate trust business of the Trustee may be sold or otherwise transferred, shall be the successor trustee hereunder without any further act.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Ratification of Original Indenture. This Thirteenth Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture, and as supplemented and modified hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture and this Thirteenth Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 7.02. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 7.03. Successors and Assigns. All covenants and agreements in this Thirteenth Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 7.04. Separability Clause. In case any one or more of the provisions contained in this Thirteenth Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 7.05. Governing Law. THIS THIRTEENTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.06. Counterparts. This Thirteenth Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. This Thirteenth Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (a) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”); (b) an original manual signature; or (c) a faxed, scanned or photocopied manual signature. Each electronic signature or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
[Signature Page Follows.]
19
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Thirteenth Supplemental Indenture to be duly executed as of the date first above written.
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | /s/ Pradipto Bagchi | |
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ Nancy Chouanard | |
| Name: Nancy Chouanard | ||
| Title: Vice President | ||
[Signature page to Thirteenth Supplemental Indenture – November 2026 Debt Offering]
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF GLOBAL NOTE]
THIS GLOBAL NOTE IS HELD BY, AND REGISTERED IN THE NAME OF, THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE, IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE SECURITY REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 203 OF THE INDENTURE, (B) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 203(1) OF THE INDENTURE, (C) THIS GLOBAL NOTE MAY BE DELIVERED TO THE SECURITY REGISTRAR FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (D) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK SA/NV (“EUROCLEAR”) OR CLEARSTREAM BANKING S.A. (“CLEARSTREAM”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF USB NOMINEES (UK) LIMITED OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO USB NOMINEES (UK) LIMITED OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR 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, USB NOMINEES (UK) LIMITED, HAS AN INTEREST HEREIN.
Common Code: 355942724
ISIN: XS3559427243
CUSIP: 98956P BE1
ZIMMER BIOMET HOLDINGS, INC.
4.375% Notes due 2033
| €[ ] | No.: R-• |
€[ ] 4.375% Note due 2033
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Zimmer Biomet Holdings, Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to USB NOMINEES (UK) LIMITED, as nominee of the common depositary for Euroclear and Clearstream, or registered assigns, the principal sum of [ ] euros (or such other lesser or greater amount set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto) on November 12, 2033, and to pay interest thereon from November 12, 2026, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, annually on November 12 of each year, commencing on November 12, 2027, at the rate of 4.375% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (as defined on the reverse hereof) (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the clearing system business day (for this purpose, a day on which Clearstream and Euroclear settle payments in euro) immediately preceding such Interest Payment Date. Interest on the Notes of this series shall 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 November 12, 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. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holder of Notes of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
If an Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the related payment of interest or principal, as applicable, will be made on the next Business Day as if it were made on the date the payment was due, and no interest will accrue on the amount so payable for the period from and after that Interest Payment Date or the Maturity Date, as the case may be, to the date the payment is made. Interest payments will include accrued interest from and including the date of issue or from and including the last date in respect to which interest has been paid, as the case may be, to, but excluding, the Interest Payment Date or the Maturity Date, as the case may be.
Payments of principal, interest and Additional Amounts (as defined on the reverse hereof), if any, in respect of the Notes of this series will be made to Euroclear, Clearstream, such nominee or such Depository, as the case may be, as Holder thereof.
The Company shall maintain a Paying Agent authorized by the Company to pay the principal of or any premium or interest on any Notes of this series on behalf of Company. U.S.
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Bank Europe DAC, UK Branch will initially act as the Paying Agent. The Company shall also maintain a Security Registrar for the purpose of registering and transferring the Notes of this series. U.S. Bank Trust Company, National Association will initially act as Security Registrar. Principal and interest on the Notes of this series will be payable at the Paying Agent Office in immediately available funds and shall be payable in euro and, except as set forth below, not any other currency. The Notes of this series will be transferable or exchangeable at the Paying Agent Office. For the purposes hereof, “euro” means 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. Payment of interest on the Notes of this series may be made at the Company’s option by check sent to the Holders. The Trustee shall appoint and authorize an Authenticating Agent to authenticate and deliver the Notes of this series on behalf of the Trustee. U.S. Bank Trust Company, National Association will initially act as the Authenticating Agent.
No service charge will be made for any transfer or exchange of the Notes of this series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
Initial Holders will be required to pay for the Notes of this series in euro, and principal, including any payments made upon any redemption or repurchase of the Notes of this series, premium, if any, and interest payments in respect of the Notes of this series will be payable in euro. Distributions of principal, premium, if any, and interest with respect to the Notes of this series will be credited in euro to the extent received by Euroclear or Clearstream from the Paying Agent to the cash accounts of Euroclear or Clearstream customers in accordance with the relevant system’s rules and procedures. If euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or the euro is no longer used by the member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of the Notes of this series will be made in Dollars until euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro will be converted to Dollars on the basis of the Market Exchange Rate on the second Business Day before that payment is due, or if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate on or before the date that payment is due. Any payment in respect of the Notes of this series so made in Dollars will not constitute an Event of Default under the Notes of this series or the Indenture. Neither the Trustee nor the Paying Agent shall be responsible for obtaining exchange rates, effecting conversions or otherwise handling re-denominations.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof or the Authenticating Agent referred to herein by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
€[ ] 4.375% Note due 2033
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | ||
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
| Attest: |
|
|
| Name: Matthew R. St. Louis |
| Title: Assistant Secretary |
€[ ] 4.375% Note due 2033
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
| Computershare Trust Company, N.A., as Trustee | ||
| By U.S. Bank Trust Company, National Association, as Authenticating Agent | ||
| By: | ||
| Authorized Signatory | ||
€[ ] 4.375% Note due 2033
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[FORM OF REVERSE OF NOTE]
This Security is one of a duly authorized issue of Securities of the Company (herein called the “Note” or “Notes”), issued and to be issued in one or more series under an Indenture, dated as of November 17, 2009 (the “Original Indenture”), as supplemented by the Thirteenth Supplemental Indenture thereto dated as of November 12, 2026 (the “Thirteenth Supplemental Indenture” and together with the Original Indenture, the “Indenture”), between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes of this series and of the terms upon which the Notes of this series are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, issued initially in an aggregate principal amount of €500,000,000. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture.
Prior to the Par Call Date, the Company may redeem the Notes of this series at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the Remaining Scheduled Payments (as defined below) of principal and interest on the Notes to be redeemed discounted to the Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate (as defined below), plus 20 basis points less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date, in accordance with and pursuant to the terms and conditions set forth in the Indenture.
On or after the Par Call Date, the Company may redeem the Notes of this series, 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 of this series being redeemed plus accrued and unpaid interest thereon to the Redemption Date, in accordance with and pursuant to the terms and conditions set forth in the Indenture.
If less than all of the Notes of this series are to be redeemed, selection of the Notes for redemption will be made in accordance with the procedures of the clearing systems, and in the case the Notes are no longer in global form or the clearing systems have no procedures, the Paying Agent will select the particular Notes or portions thereof for redemption from the outstanding Notes not previously called by such method as the Paying Agent deems appropriate and fair. No Notes of a principal amount of €100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the
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unredeemed portion of the Note will 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 in global form, the redemption of the Notes shall be done in accordance with the policies and procedures of the applicable Depository.
“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German government bond whose maturity is closest to the maturity of the Notes to be redeemed, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.
“Comparable Government Bond Rate” means the yield to maturity, expressed as a percentage (rounded to three decimal places, 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, of the applicable Comparable Government Bond on the basis of the middle market price of such Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by the independent investment bank selected by the Company.
“Par Call Date” means August 12, 2033.
“Remaining Scheduled Payments” means, with respect to each Note of this series to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date for such redemption (assuming, for this purpose, the Note matures on the Par Call Date); provided, however, that, if such Redemption Date is not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such Redemption Date.
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to redeem the Notes of this series pursuant to the Indenture, the Company will be required to make an offer to each Holder of the Notes of this series to repurchase all or any part (in minimum denominations of €100,000 and integral multiples of €1,000 above that amount) of that Holder’s Notes of this series at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on such Notes repurchased to the date of repurchase, in accordance with and pursuant to the terms and conditions set forth in the Indenture.
All payments in respect of the Notes of this series shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature, imposed or levied by the United States, any political subdivision thereof or any taxing authority thereof or therein (a “Relevant U.S. Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such withholding or deduction is required by
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law, the Company shall pay to each Holder who is not a United States Person (as defined below) such additional amounts (“Additional Amounts”) on such Notes as are necessary in order that the net payment of the principal of, and premium, if any, and interest on, such Notes to such Holder, after such withholding or deduction, will not be less than the amount provided in the Notes to be then due and payable, subject to the exceptions described below. This obligation to pay Additional Amounts shall not apply:
(1) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder (or the beneficial owner for whose benefit such Holder holds the Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a Person holding a power over an estate or trust administered by a fiduciary Holder, being considered as:
(a) being or having been engaged in a trade or business in a Relevant U.S. Taxing Jurisdiction or having or having had a permanent establishment in a Relevant U.S. Taxing Jurisdiction or having or having had a qualified business unit which has the Dollar as its functional currency;
(b) having a current or former connection with a Relevant U.S. Taxing Jurisdiction (other than a connection arising solely as a result of the ownership of such Notes, the receipt of any payment or the enforcement of any rights thereunder) or being considered as having such relationship, including being or having been a citizen or resident of a Relevant U.S. Taxing Jurisdiction or treated as having been a resident of a Relevant U.S. Taxing Jurisdiction;
(c) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States income tax purposes or a foreign personal holding company or corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury regulations thereunder or any successor provision; or
(e) being or having been 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, as described in Section 881(c)(3)(A) of the Code or any successor provision;
(2) to any Holder that is not the sole beneficial owner of such Notes, or a portion of such Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of any Additional Amounts 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, beneficial owner or any other person to (a) submit an applicable United States Internal Revenue Service (“IRS”) Form W-8BEN or W-8BEN-E
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(or appropriate substitute or successor form with any required attachments) to establish its status as a non-United States Person as required for purposes of the portfolio interest exemption or IRS Form W-9 to establish its status as a United States Person or (b) comply with other certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant U.S. Taxing Jurisdiction of the Holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the Relevant U.S. Taxing Jurisdiction or by an applicable income tax treaty to which the Relevant U.S. Taxing Jurisdiction 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 the Paying Agent (as the case may be) from the payment;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for 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;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(7) to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Council Directive on the taxation of savings;
(8) to any tax, assessment or other governmental charge required to be withheld by the Paying Agent from any payment of principal of, or premium, if any, or interest on such Note, if such payment can be made without such withholding by at least one other paying agent;
(9) to any tax, assessment or other governmental charge that would not have been imposed or levied but for the presentation by the Holder of such 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;
(10) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code, the Foreign Account Tax Compliance Act, and related Treasury regulations and pronouncements, or any successor provisions and any regulations or official law, agreement or interpretations thereof implementing an intergovernmental approach thereto; or
(11) in the case of any combination of items (1) through (10) above.
The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to such Notes. Except as specifically provided herein, the Company shall not be required to make any payment for any tax, duty, assessment or governmental charge of whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts.
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As used herein, the term “United States” means the United States of America (including the states and the District of Columbia and any political subdivision thereof), and the term “United States Person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, including an entity treated as a corporation for United States income tax purposes, or any estate or trust the income of which is subject to United States federal income taxation regardless of its source, or a trust that (1) is subject to the primary supervision of a United States court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.
Whenever in the Indenture (including in this Note) there is referenced, in any context, the payment of amounts based on the payment of principal of, or premium, if any, or interest on, the Notes of this series, or any other amount payable thereunder or with respect thereto, such reference will be deemed to include the payment of Additional Amounts as described hereunder to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The Notes of this series are redeemable in whole, but not in part, at any time, at the option of the Company, upon (notwithstanding Section 1104 of the Original Indenture) not less than 10 days’ and not more than 60 days’ prior notice to the Holders of the Notes to be redeemed, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed on that Redemption Date, plus accrued and unpaid interest on the Notes being redeemed to, but excluding, the Redemption Date if, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of a Relevant U.S. Taxing Jurisdiction, or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings (including by virtue of a holding, judgment or order by a court of competent jurisdiction or a change in published administrative practice), which change or amendment is announced or becomes effective on or after November 5, 2026, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, will become obligated to pay Additional Amounts with respect to the Notes of this series.
Upon notice to the Trustee, the Company may change the Paying Agent or Security Registrar.
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes 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 Notes at the time
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Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, the Holders of not less than 25% in principal amount of the Notes of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity or security reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered and this Note may be exchanged as provided in the Indenture.
The Notes of this series shall be issued and may be transferred only in minimum denominations of €100,000 or integral multiples of €1,000 above that amount.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
€[ ] 4.375% Note due 2033
A-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Insert assignee’s social security or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint ________as agent to transfer this Note on the books of the Company.The agent may substitute another to act for him.
| Your Signature: | ||
| (Sign exactly as your name appears on the other side of this Note) |
| Your Name: |
Date:__________
| Signature Guarantee: | * |
| * | NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee. |
€[ ] 4.375% Note due 2033
A-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note for an interest in another Global Note or for a Definitive Security, or exchanges of an interest in another Global Note or a Definitive Security for an interest in this Global Note have been made:
| Date of Exchange |
Amount of decrease |
Amount of increase |
Principal Amount of this |
Signature of authorized |
€[ ] 4.375% Note due 2033
A13
Exhibit 4.4
ZIMMER BIOMET HOLDINGS, INC.
$500,000,000 5.850% Notes due 2036
FOURTEENTH SUPPLEMENTAL INDENTURE
Dated as of November 12, 2026
to
Indenture dated as of November 17, 2009
COMPUTERSHARE TRUST COMPANY, N.A.
Trustee
Table of Contents
| Page | ||||||
|
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE |
||||||
| SECTION 1.01. |
Application of this Fourteenth Supplemental Indenture | 1 | ||||
| SECTION 1.02. |
Definitions | 2 | ||||
| SECTION 1.03. |
Incorporation by Reference of Trust Indenture Act | 5 | ||||
|
ARTICLE II
CREATION, FORMS, TERMS AND CONDITIONS OF THE SECURITIES
|
||||||
| SECTION 2.01. |
Creation of the Notes | 6 | ||||
| SECTION 2.02. |
Form of the Notes | 6 | ||||
| SECTION 2.03. |
Terms, Conditions and Covenants of the Notes | 6 | ||||
| SECTION 2.04. |
Ranking | 7 | ||||
| SECTION 2.05. |
Sinking Fund | 7 | ||||
|
ARTICLE III
REDEMPTION
|
||||||
| SECTION 3.01. |
Optional Redemption | 8 | ||||
| SECTION 3.02. |
General | 8 | ||||
|
ARTICLE IV
CHANGE OF CONTROL
|
||||||
| SECTION 4.01. |
Repurchase at the Option of Holders Upon a Change of Control Repurchase Event | 9 | ||||
|
ARTICLE V
EXECUTION OF NOTES; TRANSFER AND EXCHANGE
|
||||||
| SECTION 5.01. |
Execution of Notes | 10 | ||||
| SECTION 5.02. |
Transfer and Exchange | 10 | ||||
|
ARTICLE VI
TRUSTEE
|
||||||
| SECTION 6.01. |
Corporate Trust Office | 12 | ||||
ii
| SECTION 6.02. |
Recitals of Fact; Certain Other Matters | 12 | ||||
| SECTION 6.03. |
Successor | 12 | ||||
|
ARTICLE VII
MISCELLANEOUS PROVISIONS
|
||||||
| SECTION 7.01. |
Ratification of Original Indenture | 12 | ||||
| SECTION 7.02. |
Effect of Headings | 13 | ||||
| SECTION 7.03. |
Successors and Assigns | 13 | ||||
| SECTION 7.04. |
Separability Clause | 13 | ||||
| SECTION 7.05. |
Governing Law | 13 | ||||
| SECTION 7.06. |
Counterparts | 13 | ||||
|
EXHIBITS
|
||||||
| EXHIBIT A |
Form of Global Note | |||||
iii
FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of November 12, 2026 (this “Fourteenth Supplemental Indenture”), between ZIMMER BIOMET HOLDINGS, INC. (f/k/a ZIMMER HOLDINGS, INC.), a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal offices at 345 East Main Street, Warsaw, Indiana, and COMPUTERSHARE TRUST COMPANY, N.A., a national banking association, as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company executed and delivered to the Trustee an Indenture, dated as of November 17, 2009 (the “Original Indenture”), providing for the issuance by the Company from time to time of debt securities evidencing unsecured and unsubordinated indebtedness of the Company to be issued in one or more series;
WHEREAS, the Original Indenture provides, among other things, that by means of a supplemental indenture, the Company and the Trustee may, without the consent of Holders, create one or more series of the Company’s debt securities and establish the form and terms and conditions thereof;
WHEREAS, the Company intends by this Fourteenth Supplemental Indenture to create and provide for the issuance of one new series of debt securities to be designated as the “5.850% Notes due 2036” (the “Notes”);
WHEREAS, the Board of Directors of the Company has authorized the execution and delivery of the Fourteenth Supplemental Indenture, the issuance of the Notes and the forms, terms and conditions of the Notes pursuant to Sections 201, 301 and 901 of the Original Indenture; and
WHEREAS, all acts and things necessary to make the Notes, when the Notes have been executed by the Company, authenticated by the Trustee, issued upon the terms and subject to the conditions set forth hereinafter and in the Original Indenture and delivered as provided in the Indenture against payment therefor, valid, binding and legal obligations of the Company, enforceable against the Company according to their terms, and all actions required to be taken by the Company under the Original Indenture to make this Fourteenth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Application of this Fourteenth Supplemental Indenture. Notwithstanding any other provision of this Fourteenth Supplemental Indenture, the provisions of this Fourteenth Supplemental Indenture, including the covenants set forth herein, are expressly and solely for the benefit of the Notes. The Notes constitute a series of Securities as provided in Section 301 of the Original Indenture.
SECTION 1.02. Definitions. Capitalized terms used in this Fourteenth Supplemental Indenture and not otherwise defined herein shall have the meanings ascribed to them in the Original Indenture. In addition, the following terms shall have the following meanings to be equally applicable to both the singular and the plural forms of the terms defined:
“Below Investment Grade Rating Event” means, with respect to the Notes, the Notes are rated below Investment Grade by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of a Change of Control (which period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company 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 applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event). The Trustee shall not be responsible for monitoring the Company’s rating status, making any request upon any Rating Agency, or determining whether any Below Investment Grade Rating Event with respect to the Notes has occurred.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is neither a legal holiday nor a day on which the Trustee or banking institutions in New York, New York are authorized or required by law or regulation to close.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its subsidiaries;
(2) the adoption of a plan relating to the Company’s liquidation or dissolution; or
(3) the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one or more of its wholly-owned subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock.
2
“Change of Control Repurchase Event” means, with respect to the Notes, the occurrence of both a Change of Control and a Below Investment Grade Rating Event with respect to the Notes.
“Company” has the meaning set forth in the Recitals hereto.
“Corporate Trust Office” shall be the office of the Trustee at which the Indenture shall be principally administered, which at the date of this Fourteenth Supplemental Indenture is 1505 Energy Park Drive, St. Paul, MN 55108, Attn: CCT – Administrator for Zimmer Biomet, or such other address as to which the Trustee may give notice to the Company.
“Dollar” and “$” means the lawful currency of the United States of America.
“DTC” means The Depository Trust Company, its nominees and their successors and assigns.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Fourteenth Supplemental Indenture” has the meaning set forth in the Recitals hereto.
“Global Note” means a single permanent fully-registered global note in book-entry form, without coupons, substantially in the form of Exhibit A attached hereto, as applicable.
“Indenture” means the Original Indenture as supplemented by this Fourteenth Supplemental Indenture.
“Interest Payment Date” has the meaning set forth in Section 2.03(c).
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“Maturity Date” has the meaning set forth in Section 2.03(b).
“Moody’s” means Moody’s Ratings and any successor to its rating agency business.
“Notes” has the meaning set forth in the Recitals hereto.
“Original Indenture” has the meaning set forth in the Recitals hereto.
“Par Call Date” means August 12, 2036.
“Paying Agent Office” means the designated office of the Trustee of which the corporate trust paying agent office of the Trustee shall, at any particular time be administered, which at the date of this Fourteenth Supplemental Indenture is 1505 Energy Park Drive, St. Paul, MN 55108, Attn: CCT – Administrator for Zimmer Biomet, or such other address as to which the Trustee may give notice to the Company.
3
“Rating Agency” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P 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 Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company as a replacement agency for Moody’s or S&P, as the case may be.
“Redemption Date” means the Business Day on which Notes are redeemed by the Company pursuant to Article III hereof.
“Registered Securities” means any Securities which are registered in the Security Register.
“Regular Record Date” has the meaning set forth in Section 2.03(c).
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) – H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “remaining life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the remaining life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the remaining life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the remaining life, the yield for the single Treasury constant maturity on H.15 closest to the remaining life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States
4
Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Trustee” has the meaning set forth in the Recitals hereto.
“Voting Stock” means, with respect to any Person, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or Persons performing similar functions) of such Person, even if the right to so vote has been suspended by the happening of such a contingency.
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. The Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference in and made a part of the Indenture. The following Trust Indenture Act terms have the following meanings:
“indenture securities” means the Notes.
“indenture security holder” means a Holder.
“indenture to be qualified” means this Fourteenth Supplemental Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Securities and Exchange Commission rule have the meanings assigned to them by such definitions.
5
ARTICLE II
CREATION, FORMS,
TERMS AND CONDITIONS OF THE SECURITIES
SECTION 2.01. Creation of the Notes. In accordance with Section 301 of the Original Indenture, the Company hereby creates the Notes as a separate series of its securities issued pursuant to the Indenture. The Notes shall be issued initially in an aggregate principal amount of $500,000,000, except as permitted by Sections 304, 305 or 306 of the Original Indenture.
SECTION 2.02. Form of the Notes. The Notes shall be issued in the form of one or more Global Notes, duly executed by the Company and authenticated by the Trustee, which shall be deposited with the Trustee as custodian for DTC and registered in the name of “Cede & Co.,” as the nominee of DTC. The Notes shall be substantially in the form of Exhibit A attached hereto. So long as DTC, or its nominee, is the registered owner of a Global Note, DTC or its nominee, as the case may be, shall be considered the sole owner or Holder of the Notes represented by such Global Note for all purposes under the Indenture. Ownership of beneficial interests in such Global Note shall be shown on, and transfers thereof will be effected only through, records maintained by DTC (with respect to beneficial interests of participants) or by participants or Persons that hold interests through participants (with respect to beneficial interests of beneficial owners).
SECTION 2.03. Terms, Conditions and Covenants of the Notes. The Notes shall be governed by all the terms, conditions and covenants of the Original Indenture, as supplemented by this Fourteenth Supplemental Indenture. In particular, the following provisions shall be terms of the Notes:
(a) Title and Aggregate Principal Amount. The title of the Notes shall be as specified in the Recitals; and the aggregate principal amount of the Notes shall be as specified in Section 2.01 of this Article II, except as permitted by Sections 304, 305 or 306 of the Original Indenture.
(b) Stated Maturity. The Notes shall mature, and the unpaid principal thereon shall be payable, on November 12, 2036 (the “Maturity Date”), subject to the provisions of the Original Indenture and Articles III and IV below.
(c) Interest. The rate per annum at which interest shall be payable on the Notes shall be 5.850%. Interest on the Notes shall be payable semi-annually in arrears on each May 12 and November 12, commencing on May 12, 2027 (each, an “Interest Payment Date”), to the Persons in whose names the applicable Notes are registered in the Security Register applicable to the Notes at the close of business on the immediately preceding April 27 or October 28, respectively, prior to the applicable Interest Payment Date regardless of whether such day is a Business Day (each, a “Regular Record Date”). Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest on the Notes shall accrue from and including November 12, 2026. If an Interest Payment Date, the Maturity Date or any earlier Redemption Date with respect to the Notes falls on a day that is not a Business Day, the related payment will be made on the next Business Day as if it were made on the date the payment was due, and no interest will accrue on the amount so payable for the period from and after that
6
Interest Payment Date, the Maturity Date or any such earlier Redemption Date, as the case may be, to the date the payment is made. Interest payments will include accrued interest from and including the date of original issuance or from and including the last date in respect to which interest has been paid, as the case may be, to, but excluding, the Interest Payment Date or the Maturity Date, as the case may be.
(d) Registration and Form. The Notes shall be issuable as Registered Securities as provided in Section 2.02 of this Article II. The Notes shall be issued and may be transferred only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. All payments of principal, redemption price and accrued and unpaid interest in respect of the Notes shall be made by the Company in immediately available funds. In connection with any transfer or exchange of Notes, the transferor shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045 of the Internal Revenue Code of 1986, as amended. The Trustee may rely conclusively on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
(e) Defeasance and Covenant Defeasance. The provisions for defeasance in Section 1302 of the Original Indenture, and the provisions for covenant defeasance in Section 1303 of the Original Indenture, shall be applicable to the Notes.
(f) Further Issues. Notwithstanding anything to the contrary contained in this Fourteenth Supplemental Indenture or the Original Indenture (but subject to the terms of this Section 2.03(f)), the Company may, from time to time, without the consent of or notice to the Holders, create and issue further Securities having the same ranking and terms and conditions as the Notes in all respects, except for the issue date and, in some cases, the public offering price and the first Interest Payment Date. Any additional Securities issued in this manner shall be consolidated with and shall form a single series of Securities under the Indenture with the previously issued Notes; provided that if such additional Securities are not fungible with the previously issued Notes for U.S. federal income tax purposes, such additional Securities will have a separate CUSIP number. Notice of the issuance of any such additional Securities shall be given to the Trustee and a new supplemental indenture shall be executed in connection therewith. No such additional Securities may be issued if an Event of Default has occurred and is continuing with respect to the Notes.
(g) Other Terms, Conditions and Covenants . The Notes shall have such other terms, conditions and covenants as provided in the form thereof attached as Exhibit A.
SECTION 2.04. Ranking. The Notes shall be general unsecured obligations of the Company. The Notes shall rank pari passu in right of payment with all unsecured and unsubordinated indebtedness of the Company and senior in right of payment to all subordinated indebtedness of the Company.
SECTION 2.05. Sinking Fund. The Notes will not be entitled to any sinking fund.
7
ARTICLE III
REDEMPTION
SECTION 3.01. Optional Redemption.
(a) Prior to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 20 basis points less (b) interest accrued to the Redemption Date; and
(ii) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
(b) On or after the 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 the Redemption Date.
SECTION 3.02. General.
(a) Notwithstanding Section 3.01, installments of interest on the Notes that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date will be payable on such Interest Payment Date to the registered Holders of the Notes as of the close of business on the relevant Regular Record Date according to the terms of the Notes and the Indenture. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date, interest will cease to accrue on any Notes or portions thereof that are called for redemption.
(b) Notwithstanding Section 1104 of the Original Indenture, notices of any optional redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with DTC (or another Depository’s) procedures) at least 10 days but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed at its registered address. The Company will also provide notice of any optional redemption to the Trustee no later than the date such notice is sent to the Holders, which notice shall include the information required by the Original Indenture to be provided to the Holders in connection with the notice described in the immediately preceding sentence. If the Company elects to have the Trustee give the notice, the Company shall notify the Trustee at least 5 days (unless a shorter period is agreed to by the Trustee) prior to the date notice is sent to Holders. The Company will calculate the redemption price as described in the terms of the Notes redeemed and will deliver an Officer’s Certificate to the Trustee setting forth the redemption price no later than two Business Days prior to the Redemption Date
8
(or such later date as the Trustee may agree), and the Trustee will not be responsible for such calculation nor shall the Trustee have any duty to monitor the accuracy of any calculations made by the Company. The actions and determinations of the Company in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
(c) In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee deems appropriate and fair. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will 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 will 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 DTC (or another Depository), the redemption of the Notes shall be done in accordance with the policies and procedures of the Depository.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.01. Repurchase at the Option of Holders Upon a Change of Control Repurchase Event.
(a) If a Change of Control Repurchase Event occurs with respect to the Notes, unless the Company has exercised its right to redeem the Notes pursuant to the Indenture, the Company shall make an offer to each Holder of the Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of that Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of repurchase.
(b) Within 30 days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Company will send (or with respect to a Global Note, to the extent permitted or required by applicable DTC procedures or regulations, send electronically) a notice to each Holder of the Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes on the payment date specified in the notice, which date will be no earlier than 10 days and no later than 60 days from the date such notice is sent. The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to repurchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
(c) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or
9
regulations conflict with this Article IV, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Article IV by virtue of such conflict.
(d) On the Change of Control Repurchase Event payment date, the Company will, to the extent lawful:
(i) accept for payment all the Notes or portions of the Notes (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) properly tendered pursuant to its offer;
(ii) deposit on or before 10:00 a.m., New York City time, with the Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes or portions of the Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly tendered and accepted for repurchase, together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company.
(e) The Paying Agent will promptly send to each Holder of Notes properly tendered the purchase price for the Notes. A new Note equal in principal amount to any unpurchased portion of any Notes surrendered will promptly be authenticated and sent (or caused to be transferred by book-entry) to each Holder; provided, that each new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 above that amount.
(f) The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if 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 under this Article IV and such third party purchases all Notes properly tendered and not withdrawn under its offer.
ARTICLE V
EXECUTION OF NOTES; TRANSFER AND EXCHANGE
SECTION 5.01. Execution of Notes. For purposes of this Fourteenth Supplemental Indenture and the Notes, the first sentence of Section 202 of the Original Indenture is replaced in its entirety by the following:
“An Officer of the Company shall sign the Securities for the Company, by manual, pdf or facsimile signature.”
SECTION 5.02. Transfer and Exchange. For purposes of this Fourteenth Supplemental Indenture and the Notes, Section 203(1) of the Original Indenture is replaced in its entirety by the following:
“SECTION 203. Transfer and Exchange.
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(1) Transfer and Exchange of Global Securities. A Global Security may not be transferred as a whole except by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or to another nominee of the Depository, or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository. The Company initially appoints The Depository Trust Company (“DTC”) to act as Depository with respect to the Global Securities. Global Securities shall be exchanged by the Company for Definitive Securities if:
(A) the Company delivers to the Trustee notice from the Depository that it is unwilling or unable to continue to act as Depository for the Global Securities and a successor Depository is not appointed by the Company within 90 days after the date of such notice from the Depository;
(B) the Company delivers to the Trustee notice from the Depository that it is no longer a clearing agency registered under the Exchange Act;
(C) the Company, in its sole discretion and subject to the procedures of the Depository, determines that the Global Securities (in whole but not in part) should be exchanged for Definitive Securities and delivers written notice to such effect to the Trustee; or
(D) there shall have occurred and be continuing an Event of Default under this Indenture and the Trustee has received a request from the Depository to issue Definitive Securities.
Upon the occurrence of any of the preceding events in (A), (B) or (C) above, the Company will notify the Trustee in writing that, upon surrender by the Participants of their interest in such Global Securities, Definitive Securities will be issued to each Person that such Participants and the Depository identify as being the beneficial owner of the related Securities. Beneficial interests in Global Securities may be exchanged for Definitive Securities of the same series upon request but only upon at least 30 days’ prior written notice given to the Trustee by or on behalf of the Depository in accordance with customary procedures. Global Securities also may be exchanged or replaced, in whole or in part, as provided in Sections 304, 305 and 306 hereof. Except as otherwise provided above in this Section 203, every Security authenticated and delivered in exchange for, or in lieu of, a Global Security or any portion thereof, pursuant to this Section 203 or Sections 304, 305 or 306 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Security. A Global Security may not be exchanged for another Security other than as provided in this Section 203(1).”
11
ARTICLE VI
TRUSTEE
SECTION 6.01. Corporate Trust Office. The Trustee is appointed as the principal paying agent, transfer agent and registrar for the Notes, including for the purposes of Section 1002 of the Original Indenture. The Notes may be presented for payment at the Paying Agent Office of the Trustee or at any other agency as may be appointed from time to time by the Company in New York, New York or Chicago, Illinois.
SECTION 6.02. Recitals of Fact; Certain Other Matters. The Trustee makes no representation as to, and shall not be responsible in any manner whatsoever for or in respect of, the validity or sufficiency of this Fourteenth Supplemental Indenture or the due execution thereof by the Company, except for any certificate of authentication delivered in connection therewith. The recitals of fact contained herein shall be taken as the statements solely of the Company and the Trustee assumes no responsibility for the correctness thereof. The Trustee shall not be accountable for the use or application by the Company of the proceeds from the issuance of the Notes. All of the provisions contained in the Indenture in respect of the rights, powers, privileges, and immunities of the Trustee shall be applicable in respect of this Fourteenth Supplemental Indenture. The parties hereto acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, the Trustee in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties hereby agree that they shall provide the Trustee with such information as it may request including, but not limited to, each party’s name, physical address, tax identification number and other information that will help the Trustee identify and verify each party’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
SECTION 6.03. Successor. Any corporation or association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or association to which all or substantially all of the corporate trust business of the Trustee may be sold or otherwise transferred, shall be the successor trustee hereunder without any further act.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Ratification of Original Indenture. This Fourteenth Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture, and as supplemented and modified hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture and this Fourteenth Supplemental Indenture shall be read, taken and construed as one and the same instrument.
12
SECTION 7.02. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 7.03. Successors and Assigns. All covenants and agreements in this Fourteenth Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 7.04. Separability Clause. In case any one or more of the provisions contained in this Fourteenth Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 7.05. Governing Law. THIS FOURTEENTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.06. Counterparts. This Fourteenth Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. This Fourteenth Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (a) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”); (b) an original manual signature; or (c) a faxed, scanned or photocopied manual signature. Each electronic signature or faxed, scanned or photocopied manual signature shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For the avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
13
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Fourteenth Supplemental Indenture to be duly executed as of the date first above written.
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | /s/ Pradipto Bagchi | |
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ Nancy Chouanard | |
| Name: Nancy Chouanard | ||
| Title: Vice President | ||
[Signature page to Fourteenth Supplemental Indenture – November 2026 Debt Offering]
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF GLOBAL NOTE]
THIS GLOBAL NOTE IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY), IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 203 OF THE INDENTURE, (B) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 203(1) OF THE INDENTURE, (C) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (D) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP: 98956P BD3
ZIMMER BIOMET HOLDINGS, INC.
5.850% Notes due 2036
| $[ ] | No.: R-• |
Zimmer Biomet Holdings, Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of [ ] Dollars (or such other lesser or greater amount set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto) on November 12, 2036, and to pay interest thereon from November 12, 2026, or
$[ ] 5.850% Note due 2036
A-1
from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on May 12 and November 12 each year, commencing on May 12, 2027, at the rate of 5.850% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (as defined on the reverse hereof) (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the April 27 or the October 28 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holder of Notes of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Note will be made at the office or agency of the Company maintained for that purpose at the Paying Agent Office of the Trustee, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be sent to the address of the Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
$[ ] 5.850% Note due 2036
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | ||
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
| Attest: | ||
|
| ||
| Name: Matthew R. St. Louis | ||
| Title: Assistant Secretary | ||
$[ ] 5.850% Note due 2036
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
| Computershare Trust Company, N.A., as Trustee | ||
| By: | ||
| Authorized Signatory | ||
$[ ] 5.850% Note due 2036
A-4
[FORM OF REVERSE OF NOTE]
This Security is one of a duly authorized issue of Securities of the Company (herein called the “Note” or “Notes”), issued and to be issued in one or more series under an Indenture, dated as of November 17, 2009 (the “Original Indenture”), as supplemented by the Fourteenth Supplemental Indenture thereto dated as of November 12, 2026 (the “Fourteenth Supplemental Indenture” and together with the Original Indenture, the “Indenture”), between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes of this series and of the terms upon which the Notes of this series are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, issued initially in an aggregate principal amount of $500,000,000. Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture.
Prior to the Par Call Date, the Company may redeem the Notes of this series at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 20 basis points less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date, in accordance with and pursuant to the terms and conditions set forth in the Indenture.
On or after the Par Call Date, the Company may redeem the Notes of this series, 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 of this series being redeemed plus accrued and unpaid interest thereon to the Redemption Date, in accordance with and pursuant to the terms and conditions set forth in the Indenture.
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to redeem the Notes of this series pursuant to the Indenture, the Company will be required to make an offer to each Holder of the Notes of this series to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of that Holder’s Notes of this series at a repurchase price in cash equal to 101% of the aggregate principal amount of such Notes repurchased plus any accrued and unpaid interest on such Notes repurchased to the date of repurchase, in accordance with and pursuant to the terms and conditions set forth in the Indenture.
$[ ] 5.850% Note due 2036
A-5
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note or certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes 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 Notes at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, the Holders of not less than 25% in principal amount of the Notes of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity or security reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered and this Note may be exchanged as provided in the Indenture.
The Notes of this series are issuable only in registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
$[ ] 5.850% Note due 2036
A-6
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
$[ ] 5.850% Note due 2036
A-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Insert assignee’s social security or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint ________as agent to transfer this Note on the books of the Company.The agent may substitute another to act for him.
| Your Signature: | ||
| (Sign exactly as your name appears on the other side of this Note) |
| Your Name: |
Date:__________
| Signature Guarantee: | * |
| * | NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee. |
$[ ] 5.850% Note due 2036
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note for an interest in another Global Note or for a Definitive Security, or exchanges of an interest in another Global Note or a Definitive Security for an interest in this Global Note have been made:
| Date of Exchange |
Amount of decrease |
Amount of increase |
Principal Amount of this |
Signature of authorized |
$[ ] 5.850% Note due 2036
A-9
Exhibit 4.6
DATED NOVEMBER 12, 2026
ZIMMER BIOMET HOLDINGS, INC., AS ISSUER
U.S. BANK EUROPE DAC, UK BRANCH, AS PAYING AGENT
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS TRANSFER AGENT
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS REGISTRAR
- AND -
COMPUTERSHARE TRUST COMPANY, N.A., AS TRUSTEE
AGENCY AGREEMENT
relating to Notes issued pursuant to a registration statement including
a base prospectus dated February 25, 2025, as supplemented by a prospectus supplement
dated November 5, 2026
CONTENTS
| CLAUSE | PAGE | |||||
| 1. |
INTERPRETATION |
2 | ||||
| 2. |
APPOINTMENT OF THE REGISTRAR |
2 | ||||
| 3. |
APPOINTMENT OF THE TRANSFER AGENT |
2 | ||||
| 4. |
APPOINTMENT OF PAYING AGENT |
3 | ||||
| 5. |
REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT AND REGISTRAR |
3 | ||||
| 6. |
PAYMENT |
3 | ||||
| 7. |
REPAYMENT |
4 | ||||
| 8. |
PREPAYMENT OR REDEMPTION; NOTICE OF WITHHOLDING OR DEDUCTION |
4 | ||||
| 9. |
RECORDS |
5 | ||||
| 10. |
FEES AND EXPENSES |
5 | ||||
| 11. |
INDEMNITY |
5 | ||||
| 12. |
CONDITIONS OF APPOINTMENT |
6 | ||||
| 13. |
CHANGES IN PAYING AGENT, TRANSFER AGENT OR REGISTRAR AND SPECIFIED OFFICES |
8 | ||||
| 14. |
NOTICES |
9 | ||||
| 15. |
COMMUNICATIONS |
10 | ||||
| 16. |
AMENDMENTS |
11 | ||||
| 17. |
TAXES |
11 | ||||
| 18. |
REGULATORY MATTERS |
11 | ||||
| 19. |
GOVERNING LAW AND JURISDICTION |
13 | ||||
| 20. |
COUNTERPARTS |
13 | ||||
| APPENDIX 1 |
A-1 | |||||
i
THIS AGREEMENT (this “Agreement”) is effective as of November 12, 2026
BETWEEN:
| (1) | ZIMMER BIOMET HOLDINGS, INC., a corporation organized under the laws of the State of Delaware of the United States of America, having its principal offices at 345 East Main Street, Warsaw, Indiana 46580 (the “Issuer”); |
| (2) | U.S. BANK EUROPE DAC, UK BRANCH, a Designated Activity Company registered in Ireland with the Companies Registration Office, registered number 418442, with its registered office at Block F1, Cherrywood Business Park, Cherrywood, Dublin 18, Ireland D18 W2X7, acting through its UK Branch from its establishment at 125 Old Broad Street, Fifth Floor, London EC2N 1AR (registered with the Registrar of Companies for England and Wales under Registration No. BR020005) under the trade name U.S. Bank Global Corporate Trust, as Paying Agent (the “Paying Agent” which expression shall include any successor paying agent appointed in accordance with this Agreement); |
| (3) | U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized under the federal laws of the United States of America, with its office for purposes of administration of the transactions contemplated by the Notes to be issued under the Indenture (each as defined below) at 60 Livingston Avenue, Saint Paul, Minnesota 55107, as Transfer Agent (the “Transfer Agent” which expression shall include any successor transfer agent appointed in accordance with this Agreement); |
| (4) | U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized under the federal laws of the United States of America, with its office for purposes of administration of the transactions contemplated by the Notes to be issued under the Indenture (each as defined below) at 60 Livingston Avenue, Saint Paul, Minnesota 55107, as Registrar (the “Registrar” which expression shall include any successor registrar appointed in accordance with this Agreement); and |
| (5) | COMPUTERSHARE TRUST COMPANY, N.A., a national banking association chartered under the federal laws of the United States of America with its corporate trust office for purposes of the Indenture at 1505 Energy Park Drive, St. Paul, Minnesota 55108, Attention: CCT Administrator for Zimmer Biomet, as Trustee (the “Trustee”). |
WHEREAS:
| (A) | The Issuer has agreed to issue €500 million aggregate principal amount of its 4.375% Notes due 2033 (the “Notes”). |
| (B) | The Notes are to be constituted by an indenture dated as of November 17, 2009 (the “Base Indenture”), as supplemented and amended by a thirteenth supplemental indenture dated as of November 12, 2026 (the “Thirteenth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), as set out in Appendix 1. |
| (C) | The Issuer hereby appoints the Paying Agent, the Transfer Agent and the Registrar in accordance with the terms of this Agreement and the Indenture, it being understood that the Paying Agent shall act as the “Paying Agent” under the Indenture and the Transfer Agent and Registrar shall act as the “Security Registrar” under the Indenture. |
1
IT IS AGREED:
| 1. | INTERPRETATION |
Unless the context otherwise requires:
| 1.1 | References in this Agreement to the payment of principal or interest in respect of any Note shall be deemed to include any additional amounts which may become payable in respect thereof pursuant to the Notes and the Indenture. |
| 1.2 | All references in this Agreement to an agreement, instrument or other document (including this Agreement, the Indenture and the Notes) shall be construed as a reference to that agreement, instrument or document as the same may be amended, modified, varied, supplemented or novated from time to time. |
| 1.3 | Except as specifically set forth in this Agreement, this Agreement is for the exclusive benefit of the parties to this Agreement and their respective permitted successors, and shall not be deemed to give, either expressly or implicitly, any legal or equitable right, remedy, or claim to any other entity or person whatsoever. |
| 1.4 | This Agreement shall be read together with, and interpreted in light of the provisions of, the Indenture. In the event of any conflict or inconsistency between the Indenture and this Agreement, the Indenture shall prevail. |
| 2. | APPOINTMENT OF THE REGISTRAR |
| 2.1 | The Issuer hereby appoints the Registrar, and the Registrar hereby agrees to act at its specified office, as registrar in relation to the Notes in accordance with the provisions of this Agreement and the Indenture and upon the terms and subject to the conditions contained in this Agreement and the Indenture. |
| 2.2 | On the date of this Agreement, the Registrar shall provide to the Paying Agent a complete and correct copy of the register maintained by the Registrar in respect of the holders of Notes and the outstanding principal amount of Notes held by each holder of Notes. |
| 2.3 | The Registrar shall from time to time provide to the Paying Agent a complete and correct copy of the register of Notes maintained by it as soon as reasonably practicable following any transfer or exchange of any Notes, and promptly on request therefor by the Paying Agent. |
| 2.4 | The Paying Agent shall be entitled to treat as conclusive the most recent copy of the register provided to it by the Registrar in accordance with this Agreement. |
| 3. | APPOINTMENT OF THE TRANSFER AGENT |
| 3.1 | The Transfer Agent is hereby appointed, and hereby agrees to act, as the agent of the Issuer, to act as Transfer Agent for the purposes specified in this Agreement, the Indenture and the Notes, including, inter alia, completing, authenticating, holding and delivering Notes, upon the terms and subject to the conditions specified herein, in the Indenture and in the Notes, and the Transfer Agent hereby accepts such appointment. In such capacity, the Trustee has appointed pursuant to the Thirteenth Supplemental Indenture and authorized the Transfer Agent to serve as the Authenticating Agent (as defined in the Indenture) for the Notes, and the Transfer Agent hereby accepts such appointment. |
2
| 4. | APPOINTMENT OF PAYING AGENT |
| 4.1 | The Issuer hereby appoints the Paying Agent, and the Paying Agent hereby agrees, to act at its specified office as paying agent in relation to the Notes in accordance with the provisions of this Agreement and the Indenture and upon the terms and subject to the conditions contained in this Agreement and the Indenture. |
| 4.2 | The Paying Agent is appointed hereunder for the purposes of: |
| (a) | paying sums due on the Notes referred to in Section 1001 of the Base Indenture and Articles II, III and IV of the Thirteenth Supplemental Indenture; and |
| (b) | otherwise fulfilling its duties and obligations as set out in this Agreement and the Indenture. |
| 4.3 | In accordance with Section 1003 of the Base Indenture, the Paying Agent agrees, subject to the provisions of such Section, that it will (a) comply with the provisions of the Trust Indenture Act of 1939, as amended, applicable to it as a Paying Agent and (b) during the continuance of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes. |
| 5. | REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT AND REGISTRAR |
| 5.1 | Each of the Transfer Agent and the Registrar represents and warrants that it is duly authorized and qualified to act as Transfer Agent, Registrar, and/or Authenticating Agent, as applicable, and that it is duly and validly registered as a “transfer agent” in accordance with Section 17A(c) of the Securities Exchange Act of 1934, as amended, and has been approved to act in the capacities of a “transfer agent” and a “registrar” in accordance with Section 6 of The New York Stock Exchange Listed Company Manual. |
| 6. | PAYMENT |
Subject always to the Indenture and, in particular, any restrictions on the Issuer following delivery of a notice of an Event of Default (as defined in the Base Indenture):
| (a) | The Issuer shall, not later than 10:00 am (London time) on the Business Day (as defined in the Thirteenth Supplemental Indenture) on which any principal and/or interest and/or other amounts referred to in Section 1001 of the Base Indenture and Articles II, III and IV of the Thirteenth Supplemental Indenture in respect of the Notes becomes due, pay to an account of the Paying Agent specified by the Paying Agent such amount of Euros sufficient (together with any funds then held by the Paying Agent and available for such purpose) to pay all principal and interest and/or other amounts referred to in Section 1001 of the Base Indenture and Articles II, III and IV of the Thirteenth Supplemental Indenture due in respect of the Notes on such date in immediately available funds; provided that if any such date is not a Business Day such payment shall be made on the next succeeding date which is a Business Day. |
| (b) | The Issuer hereby authorises and directs the Paying Agent to make from funds so paid to the Paying Agent payment of all amounts due on the Notes in accordance with the terms of the Notes, the Indenture and the provisions of this Agreement. If any payment provided for in clause 6(a) is made late but otherwise in accordance with the provisions of this Agreement, the Paying Agent shall nevertheless make payments in respect of the Notes as aforesaid following receipt by the Paying Agent of such payment. |
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| (c) | The Paying Agent shall forthwith notify the Issuer and the Trustee if: (i) it has not, on the date on which any payment is due to be made to the Paying Agent pursuant to clause 6(a), received the full amount payable in respect thereof on such date and (ii) it receives unconditionally such full amount, together with accrued interest (if any), after that date. Unless and until the full amount of any such principal or interest payment due to be made to the Paying Agent pursuant to clause 6(a) has been received by it, the Paying Agent will not be bound to make any payments in accordance with clause 6(b). |
| (d) | Without prejudice to clause 6(c), if the Paying Agent pays out on or after the due date therefor to persons entitled thereto (other than as a result of its own negligence, wilful misconduct or fraud or that of its directors, officers, employees or agents), or becomes liable to pay out, any amounts in accordance with clause 6(b) on the assumption (which is not negated by reasonable evidence to the contrary) that the corresponding payment due from the Issuer in accordance with clause 6(a) has been or will be made, the Issuer shall on demand reimburse the Paying Agent for the relevant amount, and pay interest to the Paying Agent on such amount from (and including) the date on which it is paid out to (but excluding) the date of reimbursement at the rate per annum equal to the cost to the Paying Agent of funding the amount paid out, as certified by the Paying Agent and expressed as a rate per annum. |
| (e) | Payment of only part of the amount payable in respect of a Note may only be made at the discretion of the relevant Noteholder(s) (except as the result of a withholding or deduction for or on account of any taxes permitted by the Indenture). If at any time the Paying Agent makes a partial payment in respect of any Note presented to it, it shall inform the Registrar of the same such that the Registrar may record the same on the register of Notes. |
| 7. | REPAYMENT |
Any sums paid by, or by arrangement with, the Issuer to the Paying Agent pursuant to the terms of this Agreement shall not be required to be repaid to the Issuer unless and until the Notes in respect of which such sums were paid shall have been purchased or redeemed by the Issuer or any subsidiary of the Issuer and cancelled, but in any of these events the Paying Agent shall (provided that all other amounts due under this Agreement shall have been duly paid) upon written request by the Issuer forthwith repay to the Issuer sums equivalent to the amounts which would otherwise have been payable on the relevant Notes together with any fees previously paid to the Paying Agent in respect of such Notes. Notwithstanding the foregoing, the Paying Agent shall not be obliged to make any repayment to the Issuer so long as any amounts which under this Agreement should have been paid to or to the order of the Paying Agent by the Issuer shall remain unpaid. The Paying Agent shall not, however, be otherwise required or entitled to repay any sums properly received by it under this Agreement.
| 8. | PREPAYMENT OR REDEMPTION; NOTICE OF WITHHOLDING OR DEDUCTION |
| 8.1 | The Issuer shall provide to the Paying Agent a copy of all notices of prepayment or redemption delivered under the Indenture in respect of the Notes that it serves on the holders of the Notes including, without limitation, details of the date(s) on which such prepayments or redemption in respect of the Notes are to be made, all amounts required to be paid by the Issuer in respect thereof in accordance with the Indenture and the manner in which such prepayment or redemption will be effected. |
| 8.2 | If the Issuer, in respect of any payment, or the Paying Agent, in respect of any payment of principal of or any premium or interest on the Notes, is required to withhold or deduct any amount for or on account of tax: |
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| (a) | the Issuer shall give notice thereof to the Paying Agent and the Trustee as soon as it becomes aware of such requirement and shall give to the Paying Agent such information as the Paying Agent requires to enable it to make such deduction or withholding; and |
| (b) | except where such requirement arises as a result of prepayment or redemption of the Notes in accordance with the Indenture or by virtue of the relevant holder failing to satisfy any certification or other requirement in respect of its Notes, the Paying Agent shall give notice thereof to the Issuer and the Trustee as soon as it becomes aware of the requirement to withhold or deduct. |
| 8.3 | In the event that the Issuer determines in its sole discretion that withholding will be required by applicable law in connection with any payment due to the Paying Agent on any Notes, then the Issuer will be entitled to redirect or reorganise any such payment in any way that it sees fit in order that the payment may be made without such withholding, provided that any such redirected or reorganised payment is made through a recognised institution of international standing and otherwise made in accordance with this Agreement, the Indenture and applicable law. The Issuer will promptly notify the Paying Agent and the Trustee of any such redirection or reorganisation. |
| 9. | RECORDS |
The Paying Agent shall:
| (a) | keep a full and complete record of all payments made by it in respect of the Notes; and |
| (b) | make such records available at all reasonable times to the Issuer and any persons authorised by it, and the Trustee for inspection and for the taking of copies thereof. |
| 10. | FEES AND EXPENSES |
| 10.1 | The Issuer will pay to the Paying Agent such fees and expenses in respect of the Paying Agent’s services under this Agreement as agreed to in the fee letter dated October 2, 2026 from the Paying Agent to, and countersigned by, the Issuer and will pay to the Transfer Agent and Registrar such fees and expenses in respect of the Transfer Agent and Registrar’s services under this Agreement as agreed to in the fee letter dated October 19, 2026 from the Transfer Agent and Registrar to, and countersigned by, the Issuer. |
| 10.2 | The Issuer will also pay within 60 days after receipt of such invoices and receipts as it may reasonably require, all reasonable documented out-of-pocket expenses (including necessary advertising, facsimile and telex transmission, postage and insurance expenses and, subject to prior approval by the Issuer as set forth below, the fees and expenses of legal advisers, but excluding ordinary overhead) properly incurred by the Paying Agent, Transfer Agent and Registrar in connection with the services under this Agreement, together with any applicable value added tax or similar tax properly chargeable thereon. Payment by the Issuer to the Paying Agent, Transfer Agent and Registrar of such documented out-of-pocket expenses shall be a good discharge of the obligations of the Issuer in respect thereof. Where the advice of legal counsel is sought by the Paying Agent, Transfer Agent or Registrar, the fees of any such counsel shall be agreed to by the Issuer (acting reasonably) in advance. |
| 11. | INDEMNITY |
| 11.1 | The Issuer undertakes to indemnify and hold harmless the Paying Agent, Transfer Agent, Registrar and each of its respective directors, officers, employees or agents (each an “Indemnified Party”) on demand by such Indemnified Party against any losses, liabilities, costs, fees, expenses, claims, actions, damages or demands (including, but not limited to, all |
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| reasonable costs, charges and expenses paid or incurred in disputing or defending the foregoing and the properly incurred fees and expenses of legal advisers) which such Indemnified Party may incur or which may be made against it, as a result of or in connection with the appointment or the exercise of or performance of its powers and duties under this Agreement, except such as may result from its own negligence, wilful misconduct or fraud or that of its directors, officers, employees or agents. |
| 11.2 | The indemnity contained in clause 11.1 above shall survive the termination and expiry of this Agreement. |
| 12. | CONDITIONS OF APPOINTMENT |
| 12.1 | The Paying Agent shall (a) hold all sums received from the Issuer in accordance with this Agreement and the Indenture for payment of principal or any premium or interest on the Notes in trust for the benefit of the Trustee until such sums shall be paid to it or otherwise disposed of as provided in this Agreement and the Indenture provided that the Paying Agent may use such money as a banker in the ordinary course of business and without accounting for profits; (b) give the Trustee notice of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment of principal of or premium or interest on the Notes when the same shall be due and payable; and (c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums held by it in trust for payment in respect of the Notes. |
| 12.2 | No monies held by the Paying Agent need be segregated except as required by law. |
| 12.3 | In acting under this Agreement and in connection with the Notes, the Paying Agent, Transfer Agent and Registrar shall act solely as agent of the Issuer and, save solely in respect of its obligations under clause 3.1 (solely with respect to the Trustee) and clause 12.1 hereof, shall not have any obligations towards or relationship of agency or trust with any of the holders of the Notes or the Trustee. |
| 12.4 | The Paying Agent, Transfer Agent and Registrar shall be obliged to perform such duties and only such duties as are specifically set out in this Agreement. No implied duties or obligations shall be read into such document. The Paying Agent, Transfer Agent and Registrar shall not be obliged to perform any duties additional to or different from such duties resulting from any modification or supplement after the date hereof to any relevant documents (including, without limitation, the Indenture), unless it shall have previously agreed to perform such duties. The Paying Agent, Transfer Agent and Registrar shall not be under any obligation to take any action hereunder which any party expects, and has thus notified the Issuer in writing, will result in any expense or liability of such Paying Agent, Transfer Agent or Registrar, the payment of which within a reasonable time is not, in its opinion, assured to it. |
| 12.5 | Except as ordered by a court of competent jurisdiction or as required by law, the Paying Agent shall be entitled to treat the holder of any Note (as evidenced by the register of Notes maintained by the Registrar) as the absolute owner thereof for all purposes (whether or not it is overdue and notwithstanding any notice to the contrary or any notice of ownership, trust or any interest in it, any writing on it, or its theft or loss) and shall not be required to obtain any proof thereof or as to the identity of the bearer or holder. |
| 12.6 | The Paying Agent, Transfer Agent and Registrar may consult with any legal or other professional advisers (who may be an employee of or legal adviser to the Issuer) selected by it, at the cost of the Issuer, provided that the fees of any such counsel shall be agreed to by the Issuer (acting reasonably) in advance, and the opinion of such advisers shall be full and complete |
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| protection in respect of any action taken, omitted or suffered hereunder in accordance with the written opinion of such advisers. |
| 12.7 | The Paying Agent, Transfer Agent and Registrar shall be protected and shall incur no liability for or in respect of any action taken, suffered or omitted by it in reliance upon any instruction, request or order from the Issuer or upon any Note, notice, resolution, direction, consent, certificate, affidavit, statement, telex, facsimile transmission or other document or information from any electronic or other source reasonably believed by it to be genuine and to have been signed or otherwise given or disseminated by the proper party or parties, even if it is subsequently found not to be genuine or to be incorrect. |
| 12.8 | The Paying Agent, Transfer Agent and Registrar, whether acting for itself or in any other capacity, will not be precluded from becoming the owner of, or acquiring any interest in, holding or disposing of any Note or any shares or other securities of the Issuer or any of its subsidiaries, holding or associated companies (each a “Connected Company”), with the same rights as it would have had if it were not acting as Paying Agent, Transfer Agent or Registrar, as applicable, or from entering into or being interested in any contracts or transactions with any Connected Company or from acting on, or as depositary, trustee or agent for, any committee or body of holders of any securities of any Connected Company and will not be liable to account for any profit. |
| 12.9 | The Paying Agent shall not be required to make any payments to any holder of a Note if under any laws or regulations affecting the Paying Agent, such payment is not permitted. In the event of any such laws or regulations affecting the Paying Agent coming to the attention of the Paying Agent, it shall forthwith notify the Issuer and the Trustee. |
| 12.10 | The Issuer shall use commercially reasonable efforts to do or cause to be done all such acts, matters and things and shall make available all such documents as shall be necessary or desirable to enable the Paying Agent, Transfer Agent and Registrar to fully comply with and carry out its respective duties and obligations hereunder. |
| 12.11 | In no event shall the Paying Agent, Transfer Agent or Registrar or any of its affiliates or any of their respective officers, directors, employees, agents, advisors or representatives (collectively, “Agent Parties”) have any liability for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise), except to the extent the liability of the Paying Agent, Transfer Agent or Registrar is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the negligence, wilful misconduct or fraud of the Paying Agent, Transfer Agent or Registrar or their Agent Parties. |
| 12.12 | Notwithstanding anything contained in this Agreement to the contrary, the Paying Agent, Transfer Agent and Registrar shall not incur any liability for not performing any act or fulfilling any obligation hereunder by reason of any occurrence beyond its control including, without limitation, (i) any governmental activity (whether de jure or de facto), act of authority (whether lawful or unlawful), compliance with any governmental or regulatory order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure, requisition, nationalisation or the imposition of currency or currency control restrictions; (ii) any failure of or the effect of rules or operations of any funds transfer, settlement or clearing system, interruption, loss or malfunction of utilities, communications or computer services or the payment or repayment of any cash or sums arising from the application of any law or regulation in effect now or in the future, or from the occurrence of any event in the country in which such cash is held which may affect, limit, prohibit or prevent the transferability, convertibility, availability, payment or repayment of any cash or sums until such time as such law, regulation |
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| or event shall no longer affect, limit, prohibit or prevent such transferability, convertibility, availability, payment or repayment (and in no event, other than as provided in the Notes, shall the Paying Agent be obliged to substitute another currency for a currency whose transferability, convertibility or availability has been affected, limited, prohibited or prevented by such law, regulation or event or be obliged to pay any penalty interest); (iii) any strike or work stoppage, go slow, occupation of premises, other industrial action or dispute or any breach of contract by any essential personnel; (iv) any equipment or transmission failure or failure of applicable banking or financial systems; (v) any war, armed conflict including but not limited to hostile attack, hostilities, or acts of a foreign enemy; (vi) any riot, insurrection, civil commotion or disorder, mob violence or act of civil disobedience; (vii) any act of terrorism or sabotage; (viii) any explosion, fire, destruction of machines, equipment or any kind of installation, prolonged breakdown of transport, radioactive contamination, nuclear fusion or fission or electric current; (ix) any epidemic, natural disaster (such as but not limited to violent storm, hurricane, blizzard, earthquake, landslide, tidal wave, flood, damage or destruction by lightning, or drought); or (x) any other act of God, it being understood that the Paying Agent, Transfer Agent and Registrar shall use reasonable efforts to resume performance as soon as practicable under the circumstances. |
| 12.13 | Pursuant to and in accordance with the procedures set forth in Section 1003 of the Base Indenture either (i) the Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of the Indenture or for any other purpose, direct the Paying Agent to pay to the Trustee all sums held in trust by the Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Paying Agent; and, upon such payment by the Paying Agent to the Trustee, the Paying Agent shall be released from all further liability with respect to such money or (ii) any money deposited with the Paying Agent in trust for the payment of the principal of or any premium or interest on the Notes remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on the Issuer’s request and all liability of the Paying Agent with respect to such trust money shall thereupon cease. |
| 13. | CHANGES IN PAYING AGENT, TRANSFER AGENT OR REGISTRAR AND SPECIFIED OFFICES |
| 13.1 | The Issuer may at any time vary or terminate the appointment of the Paying Agent, Transfer Agent or the Registrar and appoint additional or other paying agents, transfer agents or registrars. |
Any variation or termination shall be made by giving to the Paying Agent, Transfer Agent or Registrar and (if different) to the paying agent, transfer agent or registrar whose appointment is to be varied or terminated reasonable prior written notice to that effect, which notice shall become effective not less than 30 days before or after any due date for any payment in respect of the Notes.
| 13.2 | Subject to clauses 13.1 and 13.3, the Paying Agent, Transfer Agent or Registrar may resign its appointment hereunder at any time by giving to the Issuer not less than 90 days’ written notice to that effect, which notice shall become effective not less than 45 days before or after any due date for any payments in respect of any Notes. |
| 13.3 | Notwithstanding clauses 13.1 and 13.2, no such termination of the appointment of, or resignation by, the Paying Agent, Transfer Agent or Registrar shall take effect until a successor has been appointed on terms approved by the Issuer or the Issuer has otherwise approved such resignation without a successor being appointed. |
| 13.4 | Notwithstanding any other provisions of clause 13.1, the appointment of the Paying Agent, Transfer Agent or Registrar shall forthwith terminate if at any time such Paying Agent, Transfer |
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| Agent or Registrar becomes incapable of acting, or is adjudged bankrupt or insolvent, or files a voluntary petition in bankruptcy or makes an assignment for the benefit of its creditors or consents to the appointment of a receiver, administrator or other similar official of it or of all or any substantial part of its property or admits in writing its inability to pay or meet its debts as they mature or suspends payment thereof, or if a resolution is passed or an order made for its winding up or dissolution, or if a receiver, administrator or other similar official of it or of all or any substantial part of its property is appointed, or if any order of any court is entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or insolvency law, or if any public officer takes charge or control of such Paying Agent, Transfer Agent or Registrar or its property or affairs for the purpose of rehabilitation, conservation, administration or liquidation or there occurs any analogous event under any applicable law. |
| 13.5 | On the date on which any such termination or resignation takes effect, the Paying Agent, Transfer Agent or Registrar shall (i) pay to or to the order of its successor (or, if none, the Issuer) any amounts held by it in respect of the Notes which have become due and payable but which have not been presented for payment; and (ii) deliver to its successor (or, if none, the Issuer or as the Issuer may direct) all records and documents maintained by it, pursuant hereto. Following such termination or resignation and pending such payment and delivery, the Paying Agent, Transfer Agent or Registrar shall hold such amounts, records and documents in trust for and subject to the order of its successor or, as the case may be, the Issuer. |
| 13.6 | Any corporation into which any Paying Agent, Transfer Agent or Registrar may be merged or converted or any corporation with which such Paying Agent, Transfer Agent or Registrar may be consolidated or any corporation resulting from any merger, conversion or consolidation to which such Paying Agent, Transfer Agent or Registrar shall be a party, or any corporation, including affiliated corporations, to which the Paying Agent, Transfer Agent or Registrar shall sell or otherwise transfer: (a) all or substantially all of its assets or (b) all or substantially all of its corporate trust business shall, on the date when the merger, conversion, consolidation or transfer becomes effective and to the extent permitted by any applicable laws, be the successor Paying Agent, Transfer Agent or Registrar under this Agreement without any further formality, and after such effective date all references in this Agreement to such Paying Agent, Transfer Agent or Registrar shall be deemed to be references to such corporation. Prior notice of any such merger, conversion, consolidation or transfer shall be given by the Paying Agent, Transfer Agent or Registrar to the Issuer and the Trustee. |
| 13.7 | The Paying Agent, Transfer Agent or Registrar may change its specified office to another office in the same city at any time by giving to the Issuer and the Trustee not less than 60 days’ prior written notice to that effect, which notice shall become effective not less than 30 days before or after any due date for any payments in respect of any Notes, and which notice shall specify the address of the new specified office and the date upon which such change is to take effect, or to another city as mutually agreed with the Issuer. |
| 14. | NOTICES |
| 14.1 | If the Issuer arranges publication of any notice to the holders of the Notes, it shall at or before the time of such publication, send copies of each notice so published to the Paying Agent (with a copy to the Trustee). The Paying Agent shall promptly forward any notices that it receives at the request of the Issuer to Euroclear and Clearstream. |
| 14.2 | The Paying Agent, Transfer Agent and Registrar shall promptly forward any written notice received by it from any holders of the Notes to the Issuer and the Trustee. |
| 14.3 | On behalf of and at the request and expense of the Issuer, the Paying Agent shall cause to be published all notices required to be given by the Issuer under the Indenture. |
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| 15. | COMMUNICATIONS |
| 15.1 | For the purposes of this clause, the address of each party at the date of this Agreement shall be the address set out below, and each party may hereafter update its address by providing written notice thereof to each other party in accordance with this clause 15 (including, where applicable, the details of the facsimile number, the person for whose attention the notice or communication is to be addressed and the email address): |
the Issuer:
| Zimmer Biomet Holdings, Inc. | ||
| 345 East Main Street Warsaw, Indiana 46580 |
Fax: (+1) 574-372-4302 Attention: Legal Department Email: Chad.Phipps@zimmerbiomet.com | |
the Paying Agent:
| U.S. BANK EUROPE DAC, UK BRANCH | ||
| 125 Old Broad Street Fifth Floor London EC2N 1AR United Kingdom |
Fax: +44 (0)207 365 2577 Attention: Relationship Management Email: CDRM@usbank.com | |
the Transfer Agent:
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION | ||
| 60 Livingston Avenue Saint Paul, Minnesota 55107 |
Fax: +44 (0)207 365 2577 Attention: Global Corporate Trust Services Email: brandon.bonfig@usbank.com | |
the Registrar:
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION |
| 60 Livingston Avenue Saint Paul, Minnesota 55107 |
Fax: +44 (0)207 365 2577 Attention: Global Corporate Trust Services |
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| Email: brandon.bonfig@usbank.com |
the Trustee:
| Computershare Trust Company, N.A. | ||
| 1505 Energy Park Drive St. Paul, Minnesota 55108 |
Attention: CT Administrator for Zimmer Biomet Email: casey.Boyle@computershare.com | |
| 15.2 | All communications hereunder will be in writing and effective only on receipt if sent by courier service, facsimile or electronic mail, read receipt received. |
| 16. | AMENDMENTS |
| 16.1 | For the avoidance of doubt, this Agreement may be amended in writing by the parties hereto. |
| 16.2 | The Issuer shall provide to the Paying Agent a copy of any amendment to the Indenture as soon as reasonably practicable following such amendment taking effect; provided, however, that amendments or supplements to the Base Indenture that do not relate to or do not impact the Notes or the duties of the Paying Agent hereunder need not be provided. Where reference is made in this Agreement to the Indenture, such reference shall, for the purposes of the Paying Agent’s rights and obligations under this Agreement only, be deemed to refer to the most recent version of such document provided to the Paying Agent by the Issuer. |
| 17. | TAXES |
The Issuer agrees to pay any and all stamp and other documentary taxes or duties which may be payable in connection with the execution, delivery, performance and enforcement of this Agreement.
| 18. | REGULATORY MATTERS |
| 18.1 | The Paying Agent is authorised by the Central Bank of Ireland (“CBOI”) and the Prudential Regulation Authority (“PRA”) and subject to regulation by the Financial Conduct Authority (“FCA”) and limited regulation by the PRA. Details about the extent of the Account Bank’s authorisation and regulation by the PRA, and regulation by the FCA are available on request. |
| 18.2 | In connection with the worldwide effort against the funding of terrorism and money laundering activities, the Paying Agent, Transfer Agent and Registrar may be required under various national laws and regulations to which they are subject to obtain, verify and record information that identifies each person who opens an account with it. For a non-individual person such as a business entity, a charity, a trust or other legal entity, the Paying Agent, Transfer Agent and Registrar shall be entitled to ask for documentation to verify such entity’s formation and legal existence as well as financial statements, licenses, identification and authorisation documents from individuals claiming authority to represent the entity or other relevant documentation. |
| 18.3 | The parties to this Agreement acknowledge and agree that the obligations of the Paying Agent, Transfer Agent and Registrar under this Agreement are limited by and subject to compliance by |
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| them with EU and US Federal anti-money laundering statutes and regulations. If the Paying Agent, Transfer Agent and Registrar or any of their directors know or suspect that a payment is the proceeds of criminal conduct, such person is required to report such information pursuant to the applicable authorities and such report shall not be treated as a breach by such person of any confidentiality covenant or other restriction imposed on such person under this Agreement, by law or otherwise on the disclosure of information. The Paying Agent, Transfer Agent and Registrar shall be indemnified and held harmless by the Issuer from and against all losses suffered by them that may arise as a result of the agents being prevented from fulfilling their obligations hereunder due to the extent doing so would be unlawful under applicable statutory anti-money laundering requirements. |
| 18.4 | Notwithstanding anything to the contrary in this Agreement or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any party arising under this Agreement or any such other document, to the extent such liability is unsecured or not otherwise exempted, may be subject to the write-down and conversion powers of a Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: |
| (a) | the lawful application of any Write-Down and Conversion Powers by a Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto; and |
| (b) | the effects of any Bail-In Action on any such liability, including, if applicable: |
| 1. | a reduction in full or in part or cancellation of any such liability; |
| 2. | a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such party, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other agreement; or |
| 3. | the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any Resolution Authority. |
For the purpose of this sub-clause 18.4 the following terms shall have the following meanings:
“Bail-In Action” means the lawful exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and in relation to any other state, any analogous law or regulation from time to time which requires contractual recognition of any Write-Down and Conversion Powers contained in that law or regulation.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority to exercise any Write-Down and Conversion Powers.
“Write-Down and Conversion Powers” means,
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| (a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; and |
| (b) | any powers under the Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, 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 or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and any similar or analogous powers under that Bail-In Legislation. |
| 19. | GOVERNING LAW AND JURISDICTION |
| 19.1 | This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York. |
| 19.2 | Each of the Paying Agent, the Transfer Agent, the Registrar and the Issuer irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement. To the fullest extent permitted by applicable law, each of the Paying Agent, the Transfer Agent, the Registrar and the Issuer irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. |
| 19.3 | Each of the Paying Agent, the Transfer Agent, the Registrar and the Issuer agrees, to the fullest extent permitted by applicable law, that a final judgment in any suit, action or proceeding of the nature referred to in clause 19.2 brought in any such court shall be conclusive and binding upon it subject to rights of appeal, as the case may be, and may be enforced in the courts of the United States of America or the State of New York (or any other courts to the jurisdiction of which it or any of its assets is or may be subject) by a suit upon such judgment. |
| 19.4 | THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS AGREEMENT. |
| 20. | COUNTERPARTS |
This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but all of which when taken together shall constitute a single instrument. Signatures of the parties hereto transmitted by facsimile, PDF or any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law may be used in lieu of the originals and shall be deemed to be their original signatures for all purposes.
AS WITNESS the hands of the parties or their duly authorised agents have been set hereto as of the day and year first above written.
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SIGNATORIES
| PAYING AGENT | ||
| U.S. BANK EUROPE DAC, UK BRANCH | ||
| By: | /s/ Shobita Choudhury | |
| Name: Shobita Choudhury | ||
| Title: Authorised Signatory | ||
| TRANSFER AGENT | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION | ||
| By: | /s/ Brandon Bonfig | |
| Name: Brandon Bonfig | ||
| Title: Vice President | ||
| By: | /s/ Quinton M. DePompolo | |
| Name: Quinton M. DePompolo | ||
| Title: Vice President | ||
| REGISTRAR | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION | ||
| By: | /s/ Brandon Bonfig | |
| Name: Brandon Bonfig | ||
| Title: Vice President | ||
| By: | /s/ Quinton M. DePompolo | |
| Name: Quinton M. DePompolo | ||
| Title: Vice President | ||
[Signature Page to Agency Agreement]
| ISSUER | ||
| ZIMMER BIOMET HOLDINGS, INC. | ||
| By: | /s/ Pradipto Bagchi | |
| Name: Pradipto Bagchi | ||
| Title: Vice President and Treasurer | ||
| TRUSTEE | ||
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ Nancy Chouanard | |
| Name: Nancy Chouanard | ||
| Title: Vice President | ||
[Signature Page to Agency Agreement]
APPENDIX 1
Indenture
A-1
Exhibit 5.1
|
faegredrinker.com |
Faegre Drinker Biddle & Reath LLP
600 East 96th Street, Suite 600
Indianapolis, Indiana 46240
+1 317 569 9600 main
+1 317 569 4800 fax
November 12, 2026
Zimmer Biomet Holdings, Inc.
345 East Main Street
Warsaw, Indiana 46580
Ladies and Gentlemen:
We have acted as counsel to Zimmer Biomet Holdings, Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale by the Company of €500,000,000 aggregate principal amount of its 4.375% Notes due 2033 (the “Securities”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
In rendering the opinions expressed herein, we have examined:
(a) the Registration Statement on Form S-3 (Registration No. 333-285227) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) on February 25, 2025, including the exhibits thereto and the base prospectus constituting a part thereof, dated February 25, 2025, including the documents incorporated by reference therein, relating to the offering from time to time of equity and debt securities of the Company pursuant to Rule 415 promulgated under the Securities Act of 1933, as amended (the “Act”);
(b) the preliminary prospectus supplement dated November 5, 2026 and the final prospectus supplement dated November 5, 2026 (the “Prospectus Supplement”), including the documents incorporated by reference therein, filed with the Commission pursuant to Rule 424 promulgated under the Act;
(c) the Underwriting Agreement, dated November 5, 2026 (the “Underwriting Agreement”), by and among the Company and Barclays Bank PLC, Citigroup Global Markets Limited, HSBC Bank plc, Morgan Stanley & Co. International plc and RBC Europe Limited, as representatives of the underwriters named in Schedule I thereto;
(d) the Indenture dated as of November 17, 2009 (the “Base Indenture”), between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), and the Thirteenth Supplemental Indenture thereto dated as of November 12, 2026 between the Company and the Trustee (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), including the form of global note attached thereto;
| Zimmer Biomet Holdings, Inc. | -2- | November 12, 2026 |
(e) an executed copy of the global note evidencing the Securities;
(f) the Agency Agreement, dated as of November 12, 2026 (the “Agency Agreement”), by and among the Company, U.S. Bank Europe DAC, UK Branch, as paying agent, U.S. Bank Trust Company, National Association, as transfer agent and registrar, and the Trustee; and
(g) the Restated Certificate of Incorporation of the Company, as amended to date, the Restated Bylaws of the Company, as amended to date, and the corporate actions taken by the Company in connection with the Indenture and the issuance of the Securities.
We also have examined the originals, or duplicates or certified or conformed copies, of such corporate records and other records, agreements, documents, certificates and instruments, and have reviewed such authorities of law, as we have deemed relevant and necessary as a basis for our opinions hereinafter set forth.
On the basis of and subject to the foregoing and the qualifications set forth in Annex I attached hereto, we are of the opinion that the Securities represent valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the same may be limited by the effect of bankruptcy, insolvency, receivership, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether considered in a proceeding in equity or at law).
We consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K of the Company filed with the Commission on the date hereof and thereby incorporated by reference into the Registration Statement and to the reference to us under the heading “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
Yours very truly,
| /s/ Faegre Drinker Biddle & Reath LLP |
| FAEGRE DRINKER BIDDLE & REATH LLP |
ANNEX I
In rendering the accompanying opinion letter we wish to advise you of the following additional qualifications to which such opinion letter is subject:
(a) We have relied, as to certain relevant facts, upon representations made by the Company in the Underwriting Agreement, the Indenture, the Agency Agreement and the Securities (collectively, the “Transaction Documents”), upon the assumptions set forth herein, and upon certificates of, and information provided by, public officials and officers and employees of the Company reasonably believed by us to be appropriate sources of information, as to the accuracy of such factual matters, in each case without independent verification thereof or other investigation.
(b) Our opinion letter is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware (the “Covered Laws”), and we express no opinion as to the effect on the matters covered by our opinions of any other law.
(c) We have relied, without investigation, upon the following assumptions: (i) natural persons who are involved on behalf of the Company have sufficient legal capacity to enter into and perform, on behalf of the Company, the transaction in question and to carry out their role in the transaction; (ii) each party to each Transaction Document (other than the Company) has satisfied those legal requirements that are applicable to it to the extent necessary to make such Transaction Document enforceable against it; (iii) each party to agreements or instruments relevant hereto other than the Company has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce such agreements or instruments against the Company; (iv) each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document, including electronic signatures, are genuine; (v) all statutes, judicial and administrative decisions, and rules and regulations of governmental agencies, constituting the Covered Laws are publicly available to lawyers practicing in the jurisdictions the laws of which are addressed by this opinion letter (the “Opining Jurisdictions”); (vi) all relevant statutes, rules, regulations or agency actions are constitutional and valid unless a reported decision in the Opining Jurisdictions has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity; and (vii) there are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of dealing among the parties that would, in either case, define, supplement or qualify the agreements or instruments relevant hereto.
(d) Without limiting any other qualifications set forth herein, the opinions expressed in the accompanying opinion letter regarding the enforceability of certain Transaction Documents are subject to the effect of generally applicable laws that (i) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct or to the extent such provisions are contrary to public policy; (ii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs; (iii) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver; (iv) limit the availability of a remedy under certain circumstances where another remedy has been elected; (v) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; (vi) may permit a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting a cure would unreasonably hinder the
Annex I, Page 1
aggrieved party from making substitute arrangements for performance or it is important under the circumstances to the aggrieved party that performance occur by the date stated in the contract; (vii) limit the enforceability of provisions of instruments or agreements that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness; (viii) may limit the enforceability of provisions for the payment of premiums upon mandatory prepayment to the extent any such payment constitutes, or is deemed to constitute, a penalty or forfeiture; (ix) may require mitigation of damages; (x) provide a time limitation after which rights may not be enforced (i.e., statutes of limitation); (xi) may require that a claim with respect to any debt securities that are payable other than in U.S. dollars (or a foreign currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law; or (xii) may limit, delay or prohibit the making of payments outside the United States.
(e) We express no opinion as to the enforceability or effect in any Transaction Document of (i) any agreement to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction), any provision restricting access to courts (including without limitation agreements to arbitrate disputes), any waivers of the right to jury trial, any waivers of service of process requirements that would otherwise be applicable, any provision relating to evidentiary standards, any agreement that a judgment rendered by a court in one jurisdiction may be enforced in another jurisdiction, or any provision otherwise affecting the jurisdiction or venue of courts; (ii) any provision waiving or otherwise modifying legal, statutory or equitable defenses or other procedural, judicial or substantive rights; or (iii) any provision that authorizes one party to act as attorney-in-fact for another party.
(f) The opinions herein expressed are limited to the specific issues addressed and to facts and laws existing on the date hereof. In rendering these opinions, we do not undertake to advise you with respect to any other matter or of any change in such laws or in the interpretation thereof, or of any change in facts or in our knowledge of relevant facts, which may occur or become known to us after the date hereof.
(g) The opinions expressed herein do not address compliance with fiduciary duty and conflict of interest requirements.
Annex I, Page 2
Exhibit 5.2
|
|
faegredrinker.com |
Faegre Drinker Biddle & Reath LLP
600 East 96th Street, Suite 600
Indianapolis, Indiana 46240
+1 317 569 9600 main
+1 317 569 4800 fax
November 12, 2026
Zimmer Biomet Holdings, Inc.
345 East Main Street
Warsaw, Indiana 46580
Ladies and Gentlemen:
We have acted as counsel to Zimmer Biomet Holdings, Inc., a Delaware corporation (the “Company”), in connection with the issuance and sale by the Company of $500,000,000 aggregate principal amount of its 5.850% Notes due 2036 (the “Securities”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
In rendering the opinions expressed herein, we have examined:
(a) the Registration Statement on Form S-3 (Registration No. 333-285227) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) on February 25, 2025, including the exhibits thereto and the base prospectus constituting a part thereof, dated February 25, 2025, including the documents incorporated by reference therein, relating to the offering from time to time of equity and debt securities of the Company pursuant to Rule 415 promulgated under the Securities Act of 1933, as amended (the “Act”);
(b) the preliminary prospectus supplement dated November 5, 2026 and the final prospectus supplement dated November 5, 2026 (the “Prospectus Supplement”), including the documents incorporated by reference therein, filed with the Commission pursuant to Rule 424 promulgated under the Act;
(c) the Underwriting Agreement, dated November 5, 2026 (the “Underwriting Agreement”), by and among the Company and Barclays Capital Inc., BofA Securities, Inc., J.P. Morgan Securities LLC, Mizuho Securities USA LLC and SMBC Nikko Securities America, Inc., as representatives of the underwriters named in Schedule I thereto;
(d) the Indenture dated as of November 17, 2009 (the “Base Indenture”), between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”), and the Fourteenth Supplemental Indenture thereto dated as of November 12, 2026 between the Company and the Trustee (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), including the form of the global note attached thereto;
| Zimmer Biomet Holdings, Inc. | -2- | November 12, 2026 |
(e) an executed copy of the global note evidencing the Securities; and
(f) the Restated Certificate of Incorporation of the Company, as amended to date, the Restated Bylaws of the Company, as amended to date, and the corporate actions taken by the Company in connection with the Indenture and the issuance of the Securities.
We also have examined the originals, or duplicates or certified or conformed copies, of such corporate records and other records, agreements, documents, certificates and instruments, and have reviewed such authorities of law, as we have deemed relevant and necessary as a basis for our opinions hereinafter set forth.
On the basis of and subject to the foregoing and the qualifications set forth in Annex I attached hereto, we are of the opinion that the Securities represent valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the same may be limited by the effect of bankruptcy, insolvency, receivership, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether considered in a proceeding in equity or at law).
We consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K of the Company filed with the Commission on the date hereof and thereby incorporated by reference into the Registration Statement and to the reference to us under the heading “Legal Matters” in the Prospectus Supplement. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
Yours very truly,
| /s/ Faegre Drinker Biddle & Reath LLP |
| FAEGRE DRINKER BIDDLE & REATH LLP |
ANNEX I
In rendering the accompanying opinion letter we wish to advise you of the following additional qualifications to which such opinion letter is subject:
(a) We have relied, as to certain relevant facts, upon representations made by the Company in the Underwriting Agreement, the Indenture and the Securities (collectively, the “Transaction Documents”), upon the assumptions set forth herein, and upon certificates of, and information provided by, public officials and officers and employees of the Company reasonably believed by us to be appropriate sources of information, as to the accuracy of such factual matters, in each case without independent verification thereof or other investigation.
(b) Our opinion letter is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware (the “Covered Laws”), and we express no opinion as to the effect on the matters covered by our opinions of any other law.
(c) We have relied, without investigation, upon the following assumptions: (i) natural persons who are involved on behalf of the Company have sufficient legal capacity to enter into and perform, on behalf of the Company, the transaction in question and to carry out their role in the transaction; (ii) each party to each Transaction Document (other than the Company) has satisfied those legal requirements that are applicable to it to the extent necessary to make such Transaction Document enforceable against it; (iii) each party to agreements or instruments relevant hereto other than the Company has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce such agreements or instruments against the Company; (iv) each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document, including electronic signatures, are genuine; (v) all statutes, judicial and administrative decisions, and rules and regulations of governmental agencies, constituting the Covered Laws are publicly available to lawyers practicing in the jurisdictions the laws of which are addressed by this opinion letter (the “Opining Jurisdictions”); (vi) all relevant statutes, rules, regulations or agency actions are constitutional and valid unless a reported decision in the Opining Jurisdictions has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity; and (vii) there are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of dealing among the parties that would, in either case, define, supplement or qualify the agreements or instruments relevant hereto.
(d) Without limiting any other qualifications set forth herein, the opinions expressed in the accompanying opinion letter regarding the enforceability of certain Transaction Documents are subject to the effect of generally applicable laws that (i) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct or to the extent such provisions are contrary to public policy; (ii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs; (iii) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver; (iv) limit the availability of a remedy under certain circumstances where another remedy has been elected; (v) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; (vi) may permit a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting a cure would unreasonably hinder the
Annex I, Page 1
aggrieved party from making substitute arrangements for performance or it is important under the circumstances to the aggrieved party that performance occur by the date stated in the contract; (vii) limit the enforceability of provisions of instruments or agreements that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness; (viii) may limit the enforceability of provisions for the payment of premiums upon mandatory prepayment to the extent any such payment constitutes, or is deemed to constitute, a penalty or forfeiture; (ix) may require mitigation of damages; (x) provide a time limitation after which rights may not be enforced (i.e., statutes of limitation); (xi) may require that a claim with respect to any debt securities that are payable other than in U.S. dollars (or a foreign currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law; or (xii) may limit, delay or prohibit the making of payments outside the United States.
(e) We express no opinion as to the enforceability or effect in any Transaction Document of (i) any agreement to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction), any provision restricting access to courts (including without limitation agreements to arbitrate disputes), any waivers of the right to jury trial, any waivers of service of process requirements that would otherwise be applicable, any provision relating to evidentiary standards, any agreement that a judgment rendered by a court in one jurisdiction may be enforced in another jurisdiction, or any provision otherwise affecting the jurisdiction or venue of courts; (ii) any provision waiving or otherwise modifying legal, statutory or equitable defenses or other procedural, judicial or substantive rights; or (iii) any provision that authorizes one party to act as attorney-in-fact for another party.
(f) The opinions herein expressed are limited to the specific issues addressed and to facts and laws existing on the date hereof. In rendering these opinions, we do not undertake to advise you with respect to any other matter or of any change in such laws or in the interpretation thereof, or of any change in facts or in our knowledge of relevant facts, which may occur or become known to us after the date hereof.
(g) The opinions expressed herein do not address compliance with fiduciary duty and conflict of interest requirements.
Annex I, Page 2