Execution copy
Citibank, N.A. – ADR Department
388 Greenwich Street
Attn: Mr. Brian Teitelbaum
Ensco plc – Amendment and Termination of ADR Program
Ladies and Gentlemen:
Reference is hereby made to (i) the Deposit Agreement, dated as of September 29, 2009 (the “Deposit Agreement”), by and among Ensco plc, a company organized and existing under the laws of England and Wales and previously known as “ENSCO International Limited” and as “Ensco International plc” (the “Company”), Citibank, N.A., a national banking association organized under the laws of the United States of America (“Citibank”) and acting in its capacity as depositary (the “Depositary”), and all Holders and Beneficial Owners of American Depositary Shares issued thereunder, (ii) the Equity Incentive Plan Servicing Agreement, dated as of December 22, 2009, as amended by Letter Agreement, dated as of
August 9, 2010 (as so amended, the “EIP Agreement”), by and between the Company and Citibank, and (iii) the Letter Agreement, dated December 22, 2009 (the “Bailment Letter Agreement”), by and among the Company, ENSCO International Incorporated and the Depositary. All capitalized terms used but not otherwise defined herein shall (unless otherwise designated herein) have the meaning given to such terms in the Deposit Agreement.
The Company hereby informs the Depositary that its Shares have become eligible for settlement in DTC and, as a result, the Shares are expected to become eligible for trading on The New York Stock Exchange directly starting on May 22, 2012 and are expected to settle in DTC starting on May 22, 2012. The Company hereby instructs the Depositary, and the Depositary hereby agrees, to terminate the ADR Facility existing pursuant to the Deposit Agreement upon the terms set forth herein (the “Termination”).
The Company further informs the Depositary that it has appointed Computershare Trust Company, N.A. (“Computershare”), and Computershare has agreed, to act as exchange agent for the holders of record of ADSs (other than ADSs registered in the name of Cede & Co.) in connection with the Termination (Computershare in such capacity, the “Exchange Agent”) and as custodian for holders of Shares of the Company who elect to hold such Shares in uncertificated form.
In connection with the Termination, the Company and the Depositary agree as follows:
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The date for the Termination will be May 22, 2012 (the “Termination Date”).
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2.
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No ADSs shall be issued after the Termination Date.
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3. Notwithstanding the terms of the Deposit Agreement, without the Company's consent, the Depositary shall not sell the Shares represented by ADSs that are not timely presented to it for cancellation but shall instead continue to make available to Holders of ADRs after the Termination Date a means for cancelling ADRs and receiving the corresponding Shares.
4. In connection with the Termination, the Exchange Agent shall, promptly after the date hereof, distribute to Holders of ADSs the Notice of Termination and Amendment of ADR Facility in the form attached hereto as Exhibit A (the “Depositary Notice”).
5. ADSs registered in the name of Cede & Co. as nominee for DTC shall, in connection with the Termination, be cancelled by the Depositary upon the instructions of DTC and delivery of the corresponding Shares shall be made to DTC (or its nominee) in accordance with such instructions. DTC has informed the Company that it intends to present the ADSs that it holds for cancellation on or about May 22, 2012, but in any event on or before the Termination Date.
6. As of the Termination Date, each Uncertificated ADS shall represent the right to receive from Computershare, as exchange agent for the Termination, the corresponding Shares upon the terms set forth in the Depositary Notice. Uncertificated ADSs (other than any Uncertificated ADSs held in DTC) shall be cancelled by or on behalf of the Depositary promptly after the Termination Date and the Depositary shall cause the corresponding Shares to be delivered by National City Nominees Limited (the “Custodian Nominee”), as nominee for the Custodian of the Depositary, via the Transfer Agent for the Shares, Computershare Trust Co., N.A. (“CTCNA”), to Cede & Co., as nominee for DTC, for credit to Computershare (DTC Participant No. 2415), as Exchange Agent for the holders of record of ADSs (other than ADSs registered in the name
of Cede & Co.). The Company hereby instructs the Depositary to deliver to Computershare the ADS holders records it maintains in respect of the Uncertificated ADSs (including records in respect of certain unexchanged holders of shares of ENSCO International Incorporated entitled to receive ADSs in respect of their former shareholdings in ENSCO International Incorporated) so as to enable Computershare to administer the exchange of Uncertificated ADSs for Shares and to deliver such Shares as instructed by such holder in an exchange form to accompany the Depositary Notice (the "Exchange Form").
7. As of the Termination Date, each American Depositary Receipt (“ADRs”) evidencing Certificated ADSs shall represent the right to receive from Computershare, as exchange agent for the Termination, the corresponding Shares upon the terms set forth in the Depositary Notice. ADRs shall be cancelled by or on behalf of the Depositary only upon presentation of the applicable ADR by the Holder thereof for cancellation pursuant to the Exchange Form, or as otherwise required by law. The Certificated ADSs shall be cancelled by or on behalf of the Depositary promptly after the Termination Date and the Depositary shall cause the Shares represented by the Certificated ADSs so cancelled to be transferred by the Custodian Nominee, as nominee for the Custodian of the Depositary, via CTCNA, to Cede & Co, as nominee for DTC, for credit to Computershare (DTC Participate No. 2415), as Exchange Agent
for the holders of record of ADRs (other than ADRs registered in the name of Cede & Co.) pending the presentation of the applicable ADR by the Holder thereof for cancellation with the applicable Exchange Form containing such holder's instructions for delivery of such Shares.
The Company hereby instructs the Depositary to deliver to Computershare the ADS holder records it maintains in respect of Certificated ADSs (including records in respect of certain unexchanged holders of shares of Ensco International Incorporated entitled to receive ADSs in respect of their former shareholdings in Ensco International Incorporated) so as to enable Computershare to administer the exchange of Certificated ADSs for the Shares and to deliver such Shares as instructed by such holder in an Exchange Form.
8. The unvested ADSs maintained in Accounts (as defined in the EIP Agreement) in the name of Plan Participants (as defined in the EIP Agreement) shall be cancelled by or on behalf of the Depositary at the instruction signed by a Company Authorized Person, and the Depositary shall cause the Custodian Nominee, as nominee for the Custodian for the Depositary, to deliver the corresponding Shares, via CTCNA, to Cede & Co., as nominee for DTC, for credit to Computershare in its capacity as custodian for the Plan Participants (as defined in the EIP Agreement) in accordance with such instructions. The Company hereby instructs the Depositary to deliver to Computershare the records it maintains in respect of each of the Accounts (as defined in the EIP Agreement) so as to enable Computershare to administer the exchange of the ADSs maintained in the Accounts (as defined in the EIP Agreement) for Shares.
9. The ADSs held in the New Trust Account (as defined in the EIP Agreement) shall be cancelled by or on behalf of the Depositary at the instruction of a “Trustee Authorized Person” (as defined in the EIP Agreement) and the Depositary shall cause the Custodian Nominee, as nominee for the Custodian to the Depositary, to deliver the corresponding Shares, via CTCNA, to Cede & Co., as nominee for DTC, for credit to Computershare, as custodian for the Trust (as defined in the EIP Agreement).
10. The Ensco Delaware ADSs (as defined in the Bailment Letter Agreement) held by Citibank as bailee for ENSCO International Incorporated shall not be cancelled in connection with the Termination, and Citibank shall continue to hold the Ensco Delaware ADSs (as defined in the Bailment Letter Agreement) upon the terms set forth in the Bailment Letter Agreement. The Company hereby consents to Computershare acting as custodian of any certificates that evidence Shares held on deposit by the Depositary in respect of the Ensco Delaware ADSs (as defined in the Bailment Letter Agreement) and registered in the name of the Custodian Nominee, as nominee of the Custodian for the Depositary.
11. Any cash and unexchanged holders records held by Citibank, as exchange agent, for the acquisition of Pride International, Inc., shall be delivered by Citibank to the Exchange Agent.
12. The Company shall undertake any and all tax reporting, and shall pay any and all stock transfer taxes (if any), that may be applicable to the Termination and the transfer of Shares in respect of the Termination. Attached hereto as Exhibit B is a copy of the ruling of the UK tax authorities confirming that the delivery by the Custodian Nominee of Shares to Cede & Co. as nominee for DTC in connection with the Termination is not subject stamp duty or stamp duty reserve tax in the UK. The Company shall cause its UK tax counsel to issue an opinion (on which the Depositary and the Custodian Nominee may rely) in form and substance satisfactory to the Depositary stating that, in the opinion of such counsel, no stamp duty tax or stamp duty reserve tax is payable in the U.K. in connection with the delivery by the Custodian Nominee of Shares to
Cede & Co. as nominee for DTC in connection with the Termination.
The Company, Computershare and the Depositary agree as follows:
1. Computershare confirms that it has been or will be appointed by the Company as exchange agent for holders of record of ADSs (other than Cede & Co.) in connection with the Termination, and that it will act as such in accordance with the terms described herein.
2. Computershare acknowledges and agrees that it will hold the Shares delivered to it pursuant to sections 6 and 7 above, as custodian for the ADR Facility, and for the exclusive benefit of the holders of record of cancelled ADSs identified in the records provided to it by the Depositary, in an account at DTC that contains only assets of Computershare’s clients, that it is obligated to deliver the Shares it so holds upon receipt of the applicable documentation from the relevant holders of cancelled ADSs, and that it will deliver such Shares only upon (i) the instruction of the applicable holders of cancelled ADSs pursuant to a Exchange Form delivered to it, including the form of custody account agreement to be entered into between Computershare and such holders, or (ii) the instruction of the Depositary, or (iii) as required by law.
3. Computershare shall cancel the ADRs presented to it for cancellation after the Termination Date and shall provide evidence of such cancellation to the Depositary in such form as may reasonably be requested by the Depositary.
4. Until all ADRs are cancelled, Computershare shall provide to the Company and the Depositary, upon request and subject to applicable fees, reports specifying the ADRs cancelled, the Shares delivered upon cancellation and the balance of the ADRs outstanding.
5. Computershare and the Depositary use commercially reasonable efforts to support the Termination upon the terms set forth herein.
The Company and the Depositary agree that none of the terms of this Letter Agreement materially prejudices any substantial existing right of Holders or Beneficial Owners and that, as a result, any provision hereof that amends any term of the Deposit Agreement will be effective immediately upon the distribution of the Depositary Notice to the Holders.
The Deposit Agreement, the EIP Agreement and the Bailment Letter Agreement shall continue in full force and effect after the Termination Date, subject to the terms thereof amended hereby, and all indemnification provisions set forth therein shall cover the actions of Citibank pursuant to the terms of this Letter Agreement.
This Letter Agreement may be filed with the SEC under cover of a Post-Effective Amendment to F-6 Registration Statement to be filed in respect of the Company’s ADR Facility.
The Company, Computershare and Citibank have caused this Letter Agreement to be signed on behalf of each such company by their respective officers thereunto duly authorized.
Citibank, N.A., as Depositary under the Deposit Agreement and the Bailment Letter Agreement, and as Servicing Agent under the EIP Agreement
Computershare Trust Company, N.A., as Exchange Agent under that certain Exchange Agent Agreement dated May 14, 2012
Attachments:
A Depositary Notice
B UK Tax Ruling