Exhibit 99.21

EXECUTION VERSION

AMENDMENT TO THE CONFIRMATION

 

  

LOGO

  

Deutsche Bank AG, London Branch

  

Winchester house

  

1 Great Winchester St, London EC2N 2DB

  

Telephone: 44 20 7545 8000

  

c/o Deutsche Bank Securities Inc.

  

60 Wall Street

  

New York, NY 10005

  

Telephone: 212-250-2500

 

DATED AS OF:    August 23, 2016
TO:    Waha AC Coöperatief U.A.
ATTENTION:    Fahad Al Qassim
TELEPHONE:    +971 2 403 9385
FACSIMILE:    +971 2 667 7383
FROM:    Deutsche Bank AG, London Branch
SUBJECT:    Amendment to the Funded Collar Transaction
REFERENCE NUMBER(S):    610735

 

 

Dear Sir or Madam,

The purpose of this letter agreement (this “Amendment”) is to amend the letter agreement dated as of December 1, 2014, as amended from time to time to the date hereof, between Deutsche Bank AG, London Branch (“Dealer”) and Waha AC Coöperatief U.A. (“Counterparty”) (the “Confirmation”) confirming the terms and conditions of the Funded Collar Transaction (the “Transaction”). Any capitalized term used but not defined herein shall have the meaning assigned thereto in the Confirmation. References to the “Security Deed” shall be to the Security Deed as confirmed and supplemented by the supplemental security deed dated on or around the date hereof (the “Supplemental Security Deed”). The Supplemental Security Deed shall constitute a “Document” for the purposes of the Confirmation.

DEUTSCHE BANK AG, LONDON BRANCH IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934. DEUTSCHE BANK SECURITIES INC. (“AGENT”) HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THIS AMENDMENT AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THIS AMENDMENT. AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND COMMUNICATIONS OF ANY KIND RELATING TO THIS AMENDMENT BETWEEN DEUTSCHE BANK AG, LONDON BRANCH, AND

 

 

Chairman of the Supervisory Board: Dr. Paul Achleitner.

Management Board: John Cryan (Co-Chairman), Jürgen Fitschen (Co-Chairman), Stuart Lewis, Sylvie Matherat, Quintin Price, Garth Ritchie, Karl von Rohr, Marcus Schenck, Christian Sewing, Jeff Urwin.

Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank and the BaFin, Germany’s Federal Financial Supervisory Authority) and, in the United Kingdom, by the Prudential Regulation Authority. It is subject to supervision by the European Central Bank and by BaFin, and is subject to limited regulation in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.

Deutsche Bank AG is a joint stock corporation with limited liability incorporated in the Federal Republic of Germany, Local Court of Frankfurt am Main, HRB No. 30 000; Branch Registration in England and Wales BR000005 and Registered Address: Winchester House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank AG, London Branch is a member of the London Stock Exchange. (Details about the extent of our authorisation and regulation by the Prudential Regulation Authority, and regulation by the Financial Conduct Authority, are available on request or from www.db.com/en/content/eu_disclosures.htm)

 

COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC).

1. Amendments. The Confirmation is hereby amended as of the Amendment Effective Date (as defined below) by:

 

  a. replacing “USD 37.1070” opposite the caption “Put Strike Price” under the heading “General Terms” in Section 2 of the Confirmation with the words “With respect to each Component, as set forth in Annex A to this Confirmation”; and

 

  b. amending and restating Annex A of the Confirmation in its entirety as set forth in Annex A hereto.

2. Amendment Payment. Dealer shall pay to Counterparty an amount equal to USD 18,766,966 on or prior to August 26, 2016.

3. Collateral.

 

  a. As of the Amendment Effective Date, as a result of the increase to the Number of Transaction Shares pursuant to this Amendment (the “Share Upsize”), the Collateral shall also be increased by a number of Collateral Shares equal to such Share Upsize, which shall be deemed to have been deposited to the Collateral Account on the Amendment Effective Date and immediately Rehypothecated by Dealer.

 

  b. Counterparty hereby confirms and agrees that none of the rights and remedies of Dealer under the Security Deed shall be prejudiced, avoided or otherwise adversely affected by this Amendment and Dealer may rely and continue to rely on the Security Deed and the Supplemental Security Deed as if references therein to the “Confirmation” and to the “Agreement” are to such instrument as amended, varied, extended and supplemented from time to time.

4. Representations, Warranties and Covenants.

 

  a. Each of Dealer and Counterparty hereby repeat and remake each representation, warranty and covenant set forth in the provisions opposite the caption “Collateral” of the Confirmation, in Section 4 of the Confirmation and in the Agreement made on the Trade Date to each other as if this Amendment were the Confirmation and the Transaction and as if the date hereof were the Trade Date and references to the Security Deed were to the Security Deed and the Supplemental Security Deed.

 

  b. Counterparty represents and warrants to, and agrees with, Dealer that Counterparty shall file or cause to be filed, on the date hereof and in the manner contemplated by Rule 144(h) under the Securities Act, a notice on Form 144 relating to a number of Shares equal to the Aggregate Hedge Shares (as defined below), in the form and substance as previously provided to Dealer. Counterparty shall provide Dealer a reasonable opportunity to review and comment on any other public disclosure related to this Amendment and the transactions contemplated hereby, including, without limitation, any report or schedule filed or amended under the Exchange Act.

 

  c.

Counterparty represents and warrants to, and agrees with, Dealer that from the date three months prior to the date hereof, neither Counterparty nor any affiliate of Counterparty nor any person who would be considered to be the same “person” as Counterparty or “act[ing] in concert” with Counterparty (as such terms are used in clauses (a)(2) and (e)(3)(vi) of Rule 144 under the Securities Act (“Rule 144”)) has sold or hedged (through swaps, options, short sales or otherwise) any long position in, any Shares. Counterparty has not solicited or arranged for the solicitation of, and will not solicit or arrange for the solicitation of, orders to buy Shares in anticipation of or in connection with any sales of the Aggregate Hedge Shares. Except as

 

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  provided herein and the similar agreements entered into as of the date hereof, Counterparty has not made or arranged for, and will not make or arrange for, any payment to any person in connection with any sales of the Aggregate Hedge Shares that may be effected by or on behalf of Dealer. Counterparty does not know or have any reason to believe that the Issuer has not complied with the reporting requirements contained in paragraph (c)(1) of Rule 144. For the purposes of this paragraph, Shares shall be deemed to include securities convertible into or exchangeable or exercisable for Shares.

 

  d. Each of Dealer and Counterparty represents and warrants to, and agrees with, the other that the Aggregate Hedge Shares are intended to be sold in transactions conforming to the manner-of-sale conditions described in Rule 144(f) and (g).

 

  e. Dealer agrees with Counterparty that an affiliate of Dealer that is registered as a broker and a dealer with the Securities and Exchange Commission and is a “market maker” or a “block positioner,” as such terms are used in Rule 144, shall sell the Aggregate Hedge Shares.

5. Conditions to Effectiveness. This Amendment shall be effective on the date (the “Amendment Effective Date”) the following conditions have been satisfied or waived:

 

  a. Each of Dealer and Counterparty shall have performed all of the obligations required to be performed by it hereunder on or prior to the date required hereby;

 

  b. Counterparty shall have agreed to sell, and Deutsche Bank Securities Inc. (the “Block Placement Bank”) shall have agreed to buy, an aggregate of 994,548 Shares (the “Aggregate Hedge Shares”) at a price of USD 38.60 per share under Rule 144, pursuant to such terms and conditions as may be agreed between Counterparty and the Block Placement Bank;

 

  c. Dealer shall have received a transfer of an aggregate of 97,012 Shares (the “Additional Collateral Shares”) and USD 7,830,936 from one or more other financial institutions as an adjustment to its Hedge Position in respect of the Transaction;

 

  d. all documents and instruments, required by law or reasonably requested by Dealer to be filed, registered or recorded to create and/or re-confirm any additional security interests intended to be created by the Security Deed and perfect or record such security interests shall have been filed, registered or recorded or delivered to Dealer for filing, registration or recording;

 

  e. the Supplemental Security Deed shall have been duly executed and delivered and perfection steps over the Collateral Shares (including any Additional Collateral Shares) required in the relevant jurisdiction shall have been completed;

 

  f. all of the representations and warranties of Counterparty hereunder shall be true and correct;

 

  g. Counterparty shall have provided to Dealer (i) a legal opinion of Clifford Chance LLP, as Dutch counsel to Counterparty, (ii) a legal opinion of Latham & Watkins LLP, as English counsel to Counterparty and (iii) a legal opinion of Latham & Watkins LLP, as U.S. counsel to Counterparty, in each case addressed to Dealer and in form and substance as previously provided to Dealer; and

 

  h. the Block Placement Bank shall have received 994,548 Shares from one or more other financial institutions in settlement of the Aggregate Hedge Shares.

If the Amendment Effective Date shall not have occurred by August 26, 2016 (or such later date as agreed upon by the parties hereto), this Amendment shall automatically terminate and cease to be of further effect and the parties shall have no obligations in connection with this Amendment, other than (x) in respect of breaches of representations or covenants on or prior to such date and (y) pursuant to Section 6 below. Each of Dealer and Counterparty agree to use commercially reasonable efforts to cause the Amendment Effective Date to occur on or prior to August 26, 2016.

 

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6. Hedging Costs. If (i) the Amendment Effective Date does not occur by August 26, 2016 (or such later date as agreed upon by the parties hereto), (ii) Dealer has not breached the Confirmation, as amended by this Amendment and (iii) this Amendment is terminated as set forth in Section 5 above, Counterparty shall, upon the written request of Dealer, promptly reimburse Dealer for any costs (including, but not limited to, hedging mismatches and market losses) and expenses incurred by Dealer in connection with its hedging activities or otherwise in connection with this Amendment on and after the date hereof.

7. Continuing Effect. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of Dealer or Counterparty under the Transaction or the Confirmation. Dealer and Counterparty acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and are hereby confirmed and ratified in all respects. References in the Confirmation to the “Confirmation” or the “Transaction”, as applicable, shall refer to the Confirmation or the Transaction, as applicable, as amended by this Amendment. Counterparty hereby confirms and agrees that none of the rights and remedies of Dealer under the Confirmation shall be prejudiced, avoided or otherwise adversely affected by this Amendment and Dealer may rely and continue to rely on the Confirmation as if references therein to the “Confirmation” are to such instrument as amended, varied, extended and supplemented by this Amendment.

8. Severability; Illegality. Notwithstanding anything to the contrary in the Agreement, if compliance by either party with any provision of this Amendment would be unenforceable or illegal, (i) the parties shall negotiate in good faith to resolve such unenforceability or illegality in a manner that preserves the economic benefits of the transactions contemplated hereby and (ii) the other provisions of this Amendment shall not be invalidated, but shall remain in full force and effect.

9. Governing Law; Submission to Jurisdiction. This Amendment and all matters and all non-contractual obligations arising out of or in connection with this Amendment shall be governed by, and construed and enforced in accordance with, English Law. This Amendment is also subject to, and incorporates, the jurisdiction provisions contained in Section 13(b) of the Agreement as though, for such purpose, references in such Section 13(b) (as amended pursuant to the following proviso) to the “Agreement” were deemed to refer to this Amendment; provided that in the first line of Section 13(b) the following shall be inserted after the word “Agreement”: “including, without limitation, disputes relating to any non-contractual obligations arising out of or in connection with this Amendment”.

10. Contracts (Rights of Third Parties) Act 1999. A person who is not a party to this Amendment has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Amendment but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

11. Market Abuse Regulation Representations.

 

  a. In connection with this Amendment, Counterparty on behalf of itself and each Relevant Person (as defined below) hereby represents and warrants to Dealer, on the date of this Amendment and on each following day up to and including the date on which all amounts and liabilities under the Transaction have been discharged, that:

 

  i. for the purposes of the EU Market Abuse Regulations or comparable legislation of any other applicable jurisdiction (including but not limited to the jurisdictions in which Dealer and the issuer of the Shares are incorporated), (each, a “Relevant Jurisdiction”)) neither Counterparty nor any of its or its affiliate’s respective directors, employees or agents (each a “Relevant Person”) has made, or in any way influenced, the decision to enter into this Amendment on the basis of any inside information, price-sensitive information or other material non-public information (for the purposes of this letter, each however defined under all applicable laws and regulations in each Relevant Jurisdiction) and neither Counterparty nor any of the Relevant Persons will at any time during the term of the Transaction disclose any inside information, material non-public information or price-sensitive information to Dealer;

 

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  ii. Counterparty further warrants that, by entering into this Amendment, Dealer will not be caused to be in possession of any price-sensitive information;

 

  iii. Counterparty shall not seek to terminate, amend or otherwise modify the terms of the Transaction or exercise any right or take any action under the terms of the Transaction if it or any of the Relevant Persons is in possession of any price-sensitive or other material non-public information (each however defined under all applicable laws and regulations in each Relevant Jurisdiction) regarding any of the Shares;

 

  iv. neither Counterparty, nor any of the Relevant Persons has engaged in any behaviour or action which is designed to cause or result in, has caused or resulting in, or might reasonably be expected to cause or result in, stabilisation or manipulation of the price of, or creating any false impression as to the demand or supply of, the Shares (or any other securities issued by the issuer thereof);

 

  v. Counterparty and the Relevant Persons have not made, and will not make, any disclosure of false, incomplete, or misleading information which has caused, or might reasonably be expected to cause, a change in the normal functioning of the securities market, the stabilisation or manipulation of the price of, or creating any false impression as to the demand or supply of, the Shares (or any other securities issued by the issuer thereof); and

 

  vi. Counterparty confirms that the transactions contemplated hereby are within its corporate powers, and that they constitute a genuine and legitimate business and commercial purpose. Counterparty further confirms that it is not entering into this Amendment for any illegal, improper or unethical purpose.

 

  b. Counterparty hereby further undertakes to comply with all relevant laws and regulations with respect to the Transaction, including without limitation any disclosure rules in the Relevant Jurisdictions.

12. Method of Delivery. Whenever delivery of funds or other assets is required hereunder by or to Counterparty, such delivery shall be effected through Agent. In addition, all notices, demands and communications of any kind relating to the Transaction between Dealer and Counterparty shall be transmitted exclusively through Agent.

 

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This Amendment may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 

Very truly yours,
DEUTSCHE BANK AG, LONDON BRANCH
By:  

/s/ Mark Bamber

Name:   Mark Bamber
Title:   Managing Director
By:  

/s/ Brad Kurtzman

Name:   Brad Kurtzman
Title:   Managing Director
DEUTSCHE BANK SECURITIES INC.,
acting solely as Agent in connection with this Amendment
By:  

/s/ Robert M. Beck

Name:   Robert M. Beck
Title:   Director
By:  

/s/ Brad Kurtzman

Name:   Brad Kurtzman
Title:   Managing Director

[Signature page of Amendment]

 

 

Chairman of the Supervisory Board: Dr. Paul Achleitner.

Management Board: John Cryan (Co-Chairman), Jürgen Fitschen (Co-Chairman), Stuart Lewis, Sylvie Matherat, Quintin Price, Garth Ritchie, Karl von Rohr, Marcus Schenck, Christian Sewing, Jeff Urwin.

Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank and the BaFin, Germany’s Federal Financial Supervisory Authority) and, in the United Kingdom, by the Prudential Regulation Authority. It is subject to supervision by the European Central Bank and by BaFin, and is subject to limited regulation in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.

Deutsche Bank AG is a joint stock corporation with limited liability incorporated in the Federal Republic of Germany, Local Court of Frankfurt am Main, HRB No. 30 000; Branch Registration in England and Wales BR000005 and Registered Address: Winchester House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank AG, London Branch is a member of the London Stock Exchange. (Details about the extent of our authorisation and regulation by the Prudential Regulation Authority, and regulation by the Financial Conduct Authority, are available on request or from www.db.com/en/content/eu_disclosures.htm)

 

Counterparty hereby agrees to, accepts and confirms the terms of the foregoing as of the date set forth above.

 

WAHA AC COÖPERATIEF U.A.
By:  

/s/ Fahad Al Qassim

Name:   Fahad Al Qassim
Title:   Proxy Holder

 

[Signature page of Amendment]

ANNEX A

For each Component, the Number of Options and the Scheduled Valuation Date is set forth below:

 

Component

Number

  

Number of

Options

  

Put Strike
Price

  

Call Strike
Price

  

Scheduled
Valuation Date

  

Final Disruption
Date

1

   79,489   USD 34.7400   USD 55.9700   9/10/2018   10/19/2018

2

   79,489   USD 34.7400   USD 55.9700   9/11/2018   10/19/2018

3

   79,489   USD 34.7400   USD 55.9700   9/12/2018   10/19/2018

4

   79,489   USD 34.7400   USD 55.9700   9/13/2018   10/19/2018

5

   79,489   USD 34.7400   USD 55.9700   9/14/2018   10/19/2018

6

   79,489   USD 34.7400   USD 55.9700   9/17/2018   10/19/2018

7

   79,489   USD 34.7400   USD 55.9700   9/18/2018   10/19/2018

8

   79,489   USD 34.7400   USD 55.9700   9/19/2018   10/19/2018

9

   79,489   USD 34.7400   USD 55.9700   9/20/2018   10/19/2018

10

   79,489   USD 34.7400   USD 55.9700   9/21/2018   10/19/2018

11

   79,489   USD 34.7400   USD 55.9700   9/24/2018   10/19/2018

12

   79,489   USD 34.7400   USD 55.9700   9/25/2018   10/19/2018

13

   79,489   USD 34.7400   USD 55.9700   9/26/2018   10/19/2018

14

   79,489   USD 34.7400   USD 55.9700   9/27/2018   10/19/2018

15

   79,489   USD 34.7400   USD 55.9700   9/28/2018   10/19/2018

16

   79,489   USD 34.7400   USD 55.9700   10/1/2018   10/19/2018

17

   79,489   USD 34.7400   USD 55.9700   10/2/2018   10/19/2018

18

   79,489   USD 34.7400   USD 55.9700   10/3/2018   10/19/2018

19

   79,489   USD 34.7400   USD 55.9700   10/4/2018   10/19/2018

20

   79,483   USD 34.7400   USD 55.9700   10/5/2018   10/19/2018

21

   39,795   USD 37.1070   USD 51.5375   1/19/2017   3/2/2017

22

   39,795   USD 37.1070   USD 51.5375   1/20/2017   3/2/2017

23

   39,795   USD 37.1070   USD 51.5375   1/23/2017   3/2/2017

24

   39,795   USD 37.1070   USD 51.5375   1/24/2017   3/2/2017

25

   39,795   USD 37.1070   USD 51.5375   1/25/2017   3/2/2017

26

   39,795   USD 37.1070   USD 51.5375   1/26/2017   3/2/2017

27

   39,795   USD 37.1070   USD 51.5375   1/27/2017   3/2/2017

28

   39,795   USD 37.1070   USD 51.5375   1/30/2017   3/2/2017

29

   39,795   USD 37.1070   USD 51.5375   1/31/2017   3/2/2017

30

   39,795   USD 37.1070   USD 51.5375   2/1/2017   3/2/2017

31

   39,795   USD 37.1070   USD 51.5375   2/2/2017   3/2/2017

32

   39,795   USD 37.1070   USD 51.5375   2/3/2017   3/2/2017

33

   39,795   USD 37.1070   USD 51.5375   2/6/2017   3/2/2017

34

   39,795   USD 37.1070   USD 51.5375   2/7/2017   3/2/2017

 

Annex A – 1

Component

Number

  

Number of

Options

  

Put Strike
Price

  

Call Strike
Price

  

Scheduled
Valuation Date

  

Final Disruption
Date

35

   39,795   USD 37.1070   USD 51.5375   2/8/2017   3/2/2017

36

   39,795   USD 37.1070   USD 51.5375   2/9/2017   3/2/2017

37

   39,795   USD 37.1070   USD 51.5375   2/10/2017   3/2/2017

38

   39,795   USD 37.1070   USD 51.5375   2/13/2017   3/2/2017

39

   39,795   USD 37.1070   USD 51.5375   2/14/2017   3/2/2017

40

   38,774   USD 37.1070   USD 51.5375   2/15/2017   3/2/2017

41

   39,795   USD 37.1070   USD 53.5990   1/19/2018   3/2/2018

42

   39,795   USD 37.1070   USD 53.5990   1/22/2018   3/2/2018

43

   39,795   USD 37.1070   USD 53.5990   1/23/2018   3/2/2018

44

   39,795   USD 37.1070   USD 53.5990   1/24/2018   3/2/2018

45

   39,795   USD 37.1070   USD 53.5990   1/25/2018   3/2/2018

46

   39,795   USD 37.1070   USD 53.5990   1/26/2018   3/2/2018

47

   39,795   USD 37.1070   USD 53.5990   1/29/2018   3/2/2018

48

   39,795   USD 37.1070   USD 53.5990   1/30/2018   3/2/2018

49

   39,795   USD 37.1070   USD 53.5990   1/31/2018   3/2/2018

50

   39,795   USD 37.1070   USD 53.5990   2/1/2018   3/2/2018

51

   39,795   USD 37.1070   USD 53.5990   2/2/2018   3/2/2018

52

   39,795   USD 37.1070   USD 53.5990   2/5/2018   3/2/2018

53

   39,795   USD 37.1070   USD 53.5990   2/6/2018   3/2/2018

54

   39,795   USD 37.1070   USD 53.5990   2/7/2018   3/2/2018

55

   39,795   USD 37.1070   USD 53.5990   2/8/2018   3/2/2018

56

   39,795   USD 37.1070   USD 53.5990   2/9/2018   3/2/2018

57

   39,795   USD 37.1070   USD 53.5990   2/12/2018   3/2/2018

58

   39,795   USD 37.1070   USD 53.5990   2/13/2018   3/2/2018

59

   39,795   USD 37.1070   USD 53.5990   2/14/2018   3/2/2018

60

   38,774   USD 37.1070   USD 53.5990   2/15/2018   3/2/2018

 

Annex A – 2