As filed with the Securities and Exchange Commission on October 19, 2020
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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The Procter & Gamble Company
(Exact Name of Registrant as Specified in Its Charter)
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Ohio
(State or Other Jurisdiction of Incorporation or Organization)
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31-0411980
(I.R.S. Employer Identification No.)
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One Procter & Gamble Plaza, Cincinnati, Ohio 45202
(513) 983-1100
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
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Deborah P. Majoras, Chief Legal Officer and Secretary
The Procter & Gamble Company
One Procter & Gamble Plaza, Cincinnati, Ohio 45202
(513) 983-1100
(Name, address, including zip code, and telephone number,
Including area code, of agent for service)
Copies to:
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Andrew B. Barkan, Esq.
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Jennifer Henkel, Esq.
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Daniel J. Bursky, Esq.
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The Procter & Gamble Company
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Fried, Frank, Harris, Shriver & Jacobson LLP
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One Procter & Gamble Plaza
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One New York Plaza
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Cincinnati, Ohio 45202
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New York, New York 10004
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(513) 983-1100
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(212) 859-8000
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Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities To Be Registered
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Amount To Be Registered
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Proposed Maximum Offering Price Per Unit
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Proposed Maximum Offering Price
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Amount of Registration Fee
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Debt securities
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(1)
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(1)
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(1)
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(1)
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(1)
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An indeterminate aggregate initial offering price or number of debt securities of each identified class is being registered as may from time to time be offered at currently indeterminate prices. In accordance with
Rules 456(b) and 457(r) under the Securities Act, the Registrant is deferring payment of all of the registration fees required in connection with this registration statement.
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PROSPECTUS
The Procter & Gamble Company
Debt Securities
The Procter & Gamble Company may, from time to time, sell debt securities in one or more offerings pursuant to this prospectus. The specific terms of any debt securities to be
offered will be provided in supplements to this prospectus, together with other terms and matters related to the offering. You should read this prospectus and any prospectus supplement carefully before you invest.
This prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement.
The debt securities may be sold directly or through agents, underwriters or dealers.
Investing in debt securities involves risks. You should consider the risk factors described in any accompanying prospectus supplement or any documents
incorporated by reference.
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Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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This prospectus is dated October 19, 2020.
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (“SEC”) utilizing a “shelf” registration process. Under this shelf
process, The Procter & Gamble Company may, from time to time, sell in one or more offerings, debt securities.
This prospectus provides you with a general description of the debt securities that may be offered. Each time debt securities are sold, a prospectus supplement will be provided
that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the debt securities offered. The prospectus supplement may also add, update or change information contained in this prospectus.
You should carefully read both this prospectus and any prospectus supplement together with additional information described below under the heading “Where You Can Find More
Information.”
In both this prospectus and any accompanying prospectus supplement, unless we otherwise specify or the context otherwise requires, references to:
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“Procter & Gamble,” “P&G,” the “Company,” “we,” “us,” and “our” are, The Procter & Gamble Company and its subsidiaries;
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“fiscal” followed by a specific year are to our fiscal year ended or ending June 30 of that year; and
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“U.S. dollars," "dollars," "U.S. $" or "$" are to the currency of the United States of America.
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The Procter & Gamble Company is focused on providing branded consumer packaged goods of superior quality and value to improve the lives of the world’s consumers. The Company
was incorporated in Ohio in 1905, having first been established as a New Jersey corporation in 1890, and was built from a business founded in Cincinnati in 1837 by William Procter and James Gamble. Today, our products are sold in more than 180
countries and territories. Our principal executive offices are located at One Procter & Gamble Plaza, Cincinnati, Ohio 45202, and our telephone number is (513) 983-1100.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements included or incorporated by reference in this prospectus, other than purely historical information, including estimates, projections, statements relating to our
business plans, objectives, and expected operating results, and the assumptions upon which those statements are based, are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,”
“opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are based on current expectations and assumptions, which are subject to risks and
uncertainties that may cause results to differ materially from those expressed or implied in the forward-looking statements. We undertake no obligation to update or revise publicly any forward-looking statements, whether because of new information,
future events or otherwise, except to the extent required by law.
Risks and uncertainties to which our forward-looking statements are subject include, without limitation: (1) the ability to successfully manage global financial risks, including
foreign currency fluctuations, currency exchange or pricing controls and localized volatility; (2) the ability to successfully manage local, regional or global economic volatility, including reduced market growth rates, and to generate sufficient
income and cash flow to allow the Company to affect the expected share repurchases and dividend payments; (3) the ability to manage disruptions in credit markets or changes to our credit rating; (4) the ability to maintain key manufacturing and supply
arrangements (including execution of supply chain optimizations and sole supplier and sole manufacturing plant arrangements) and to manage disruption of business due to factors outside of our control, such as natural disasters, acts of war or
terrorism, or disease outbreaks; (5) the ability to successfully manage cost fluctuations and pressures, including prices of commodities and raw materials, and costs of labor, transportation, energy, pension and healthcare; (6) the ability to stay on
the leading edge of innovation, obtain necessary intellectual property protections and successfully respond to changing consumer habits and technological advances attained by, and patents granted to, competitors; (7) the ability to compete with our
local and global competitors in new and existing sales channels, including by successfully responding to competitive factors such as prices, promotional incentives and trade terms for products; (8) the ability to manage and maintain key customer
relationships; (9) the ability to protect our reputation and brand equity by successfully managing real or perceived issues, including concerns about safety, quality, ingredients, efficacy or similar matters that may arise; (10) the ability to
successfully manage the financial, legal, reputational and operational risk associated with third-party relationships, such as our suppliers, contract manufacturers, distributors, contractors and external business partners; (11) the ability to rely on
and maintain key company and third party information and operational technology systems, networks and services, and maintain the security and functionality of such systems, networks and services and the data contained therein; (12) the ability to
successfully manage uncertainties related to changing political conditions (including the United Kingdom’s exit from the European Union) and potential implications such as exchange rate fluctuations and market contraction; (13) the ability to
successfully manage regulatory and legal requirements and matters (including, without limitation, those laws and regulations involving product liability, product and packaging composition, intellectual property, labor and employment, antitrust, data
protection, tax, environmental, and accounting and financial reporting) and to resolve pending matters within current estimates;
(14) the ability to manage changes in applicable tax laws and regulations including maintaining our intended tax treatment of divestiture transactions; (15) the ability to successfully manage our
ongoing acquisition, divestiture and joint venture activities, in each case to achieve the Company’s overall business strategy and financial objectives, without impacting the delivery of base business objectives; (16) the ability to successfully
achieve productivity improvements and cost savings and manage ongoing organizational changes, while successfully identifying, developing and retaining key employees, including in key growth markets where the availability of skilled or experienced
employees may be limited; and (17) the ability to successfully manage the demand, supply, and operational challenges associated with a disease outbreak, including epidemics, pandemics, or similar widespread public health concerns (including the novel
coronavirus, COVID-19, outbreak). For additional information concerning factors that could cause actual results and events to differ materially from those projected herein, please refer to our most recent Form 10-K, Form 10-Q and Form 8-K reports
incorporated by reference herein.
Unless otherwise indicated in the applicable prospectus supplement, we will use the net proceeds from the sales of debt securities offered by this prospectus for general corporate
purposes.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of any debt securities that we may offer in the future. A prospectus supplement relating to a particular series of debt
securities will describe the specific terms of that particular series and the extent to which the general terms and provisions apply to that particular series. In this section, references to “Procter & Gamble,” “we,” “our,” or “us” refer solely to
The Procter & Gamble Company.
General
We expect to issue the debt securities under an indenture, dated as of September 3, 2009, between us and Deutsche Bank Trust Company Americas, as trustee. We have filed a copy of
the indenture as an exhibit to the registration statement of which this prospectus forms a part. The following summaries of various provisions of the indenture are not complete. You should read the indenture for a more complete understanding of the
provisions described in this section. The indenture itself, not this description or the description in the prospectus supplement, defines your rights as a holder of debt securities. Parenthetical section and article numbers in this description refer to
sections and articles in the indenture.
The debt securities will be unsecured obligations of Procter & Gamble. The indenture does not limit the amount of debt securities that we may issue under the indenture. The
indenture provides that we may issue debt securities from time to time in one or more series.
Terms of a Particular Series
Each prospectus supplement relating to a particular series of debt securities will include specific information relating to the offering. This information will include some or all
of the following terms of the debt securities of the series:
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the title of the debt securities;
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any limit on the total principal amount of the debt securities;
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the date or dates on which the debt securities will mature;
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the rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, and the date or dates from which interest will accrue;
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the dates on which interest, if any, will be payable and the regular record dates for interest payments;
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any mandatory or optional sinking fund or similar provisions;
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any optional or mandatory redemption provisions, including the price at which, the periods within which, and the terms and conditions upon which we may redeem or repurchase the debt securities;
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the terms and conditions upon which the debt securities may be repayable prior to final maturity at the option of the holder;
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the portion of the principal amount of the debt securities that will be payable upon acceleration of maturity, if other than the entire principal amount;
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provisions allowing us to defease the debt securities or certain restrictive covenants and certain events of default under the indenture;
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if other than in United States dollars, the currency or currencies, including composite currencies, of payment of principal of and premium, if any, and interest on the debt securities;
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the U.S. federal income tax consequences and other special considerations applicable to any debt securities denominated in a currency or currencies other than United States dollars;
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any index used to determine the amount of payments of principal of and premium, if any, and interest, if any, on the debt securities;
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if the debt securities will be issuable only in the form of a global security as described below, the depository or its nominee with respect to the debt securities and the circumstances under which the global
security may be registered for transfer or exchange in the name of a person other than the depository or its nominee;
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any deletions, modifications of or additions to the events of default or covenants contained in the indenture; and
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any other terms of the debt securities. (Section 301)
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Payment of Principal, Premium and Interest
Unless otherwise indicated in the prospectus supplement, principal of and premium, if any, and interest, if any, on the debt securities will be payable, and the debt securities
will be exchangeable and transfers of debt securities will be registrable, at the office of the trustee at 60 Wall Street, 24th Floor, MS: NYC60-2405, New York, New York 10005. At our option, however, payment of interest may be made by:
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check mailed to the address of the person entitled thereto in whose name the debt security is registered at the close of business on the regular record date at the address in the security register; or
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wire transfer of immediately available funds to an account specified in writing to us and the trustee from any holder of debt securities prior to the relevant record date. (Sections 301, 305 and 1002)
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Any payment of principal and premium, if any, and interest, if any, required to be made on a day that is not a business day need not be made on that day, but may be made on the
next succeeding business day with the same force and effect as if made on the non-business day. No interest will accrue for the period from and after the non-business day. (Section 113)
Unless otherwise indicated in the prospectus supplement relating to the particular series of debt securities, we will issue the debt securities only in fully registered form,
without coupons, in denominations of $2,000 or any multiple of $1,000. (Section 302) We will not require a service charge for any transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with any transfer or exchange. (Section 305)
Original Issue Discount Securities
Debt securities may be issued under the indenture as original issue discount securities to be offered and sold at a substantial discount from their stated principal amount. An
original issue discount security under the indenture includes any security which provides for an amount less than its principal amount to be due and payable upon a declaration of acceleration upon the occurrence of an event of default. In addition,
under regulations of the U.S. Treasury Department it is possible that debt securities which are offered and sold at their stated principal amount would, under certain circumstances, be treated as issued at an original issue discount for U.S. federal
income tax purposes, and special rules may apply to debt securities which are considered to be issued as “investment units.” U.S. federal income tax consequences and other special considerations applicable to any such original issue discount
securities, or other debt securities treated as issued at an original issue discount, and to “investment units” will be described in the applicable prospectus supplement.
Book-Entry Debt Securities
The debt securities of a series may be issued in the form of one or more global securities that will be deposited with a depository or its nominee identified in the prospectus
supplement relating to the debt securities. In this case, one or more global securities will be issued in a denomination or total denominations equal to the portion of the total principal amount of outstanding debt securities to be represented by the
global security or securities. Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a global security may not be registered for transfer or exchange except as a whole by the depository for the global
security to a nominee of the depository and except in the circumstances described in the prospectus supplement relating to the debt securities. We will describe in the prospectus supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global debt security. (Sections 204 and 305)
Restrictive Covenants
In this section we describe the principal covenants that will apply to the debt securities unless the prospectus supplement for a particular series of debt securities states
otherwise. We make use of several defined terms in this section. The definitions for these terms are located at the end of this section under “—Definitions Applicable to Covenants.”
Restrictions on Secured Debt
If we or any Domestic Subsidiary shall incur, issue, assume or guarantee any Debt secured by a Mortgage on any Principal Domestic Manufacturing Property of ours or any Domestic
Subsidiary’s or on any shares of stock of any Domestic Subsidiary that owns a Principal Domestic Manufacturing Property, we will secure, or cause such Domestic Subsidiary to secure, the debt securities then outstanding equally and ratably with (or
prior to) such Debt. However, we will not be restricted by this covenant if, after giving effect to the particular Debt so secured the total amount of all Debt so secured, together with all Attributable Debt in respect of sale and leaseback
transactions involving Principal Domestic Manufacturing Properties, would not exceed 15% of our and our consolidated subsidiaries’ Consolidated Net Tangible Assets.
In addition, the restriction will not apply to, and there shall be excluded in computing secured Debt for the purpose of the restriction, Debt secured by
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with respect to any series of debt securities, Mortgages existing on the date of the original issuance of the debt securities of such series;
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Mortgages on property of, or on any shares of stock of, any corporation existing at the time the corporation becomes a Domestic Subsidiary or at the time it is merged into or consolidated with us or a Domestic
Subsidiary;
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Mortgages in favor of us or a Domestic Subsidiary;
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Mortgages in favor of U.S., State or foreign governmental bodies to secure progress or advance payments;
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Mortgages on property or shares of stock existing at the time of their acquisition, including acquisition through merger or consolidation, purchase money Mortgages and construction or improvement cost Mortgages;
and
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any extension, renewal or refunding of any Mortgage referred to in the immediately preceding clauses (1) through (5), inclusive. (Section 1004)
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The indenture does not restrict the incurrence of unsecured debt by us or our subsidiaries.
Restrictions on Sales and Leasebacks
Neither we nor any Domestic Subsidiary may enter into any sale and leaseback transaction involving any Principal Domestic Manufacturing Property, the completion of construction and
commencement of full operation of which has occurred more than 180 days prior to the transaction, unless
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we or the Domestic Subsidiary could incur a lien on the property under the restrictions described above under “Restrictions on Secured Debt” in an amount equal to the Attributable Debt with respect to the sale
and leaseback transaction without equally and ratably securing the debt securities then outstanding, or
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we, within 180 days, apply to either (or a combination of) the investment in one or more other Principal Domestic Manufacturing Properties or the retirement of our Funded Debt an amount not less than the greater
of (1) the net proceeds of the sale of the Principal Domestic Manufacturing Property leased pursuant to such arrangement or (2) the fair market value of the Principal Domestic Manufacturing Property so leased, subject to credits for various
voluntary retirements of Funded Debt.
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This restriction will not apply to any sale and leaseback transaction
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between us and a Domestic Subsidiary,
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between Domestic Subsidiaries, or
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involving the taking back of a lease for a period of less than three years. (Section 1005)
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Definitions Applicable to Covenants
The term “Attributable Debt” means the lesser of (1) the fair market value of the Principal Domestic Manufacturing Property sold and leased back at the time of entering into a sale
and leaseback transaction and (2) the total net amount of rent, discounted at 10% per annum compounded annually, required to be paid during the remaining term of any lease.
The term “Consolidated Net Tangible Assets” means our total assets, less net goodwill and other intangible assets, less total current liabilities, all as described on our and our
consolidated subsidiaries’ most recent balance sheet and calculated based on positions as reported in our consolidated financial statements in accordance with generally accepted accounting principles.
The term “Debt” means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed.
The term “Domestic Subsidiary” means any of our subsidiaries except a subsidiary which neither transacts any substantial portion of its business nor regularly maintains any
substantial portion of its fixed assets within the United States or which is engaged primarily in financing our and our subsidiaries’ operations outside the United States.
The term “Funded Debt” means Debt having a maturity of more than 12 months from its date of creation.
The term “Mortgage” means pledges, mortgages and other liens.
The term “Principal Domestic Manufacturing Property” means any facility (together with the land on which it is erected and fixtures comprising a part of the land) used primarily
for manufacturing or processing, located in the United States, owned or leased by us or one of our subsidiaries and having a gross book value in excess of 1.0% of Consolidated Net Tangible Assets. However, the term “Principal Domestic Manufacturing
Property” does not include any facility or portion of a facility (1) which is financed by obligations the interest on which is exempt from U.S. federal income tax pursuant to Section 103 of the Internal Revenue Code of 1986, as amended (or any
predecessor or successor provision thereof), or (2) which, in the opinion of our board of directors, is not of material importance to the total business conducted by us and our subsidiaries as an entirety. (Section 101)
Events of Default
Any one of the following are events of default under the indenture with respect to debt securities of any series:
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our failure to pay principal of or premium, if any, on any debt security of that series when due;
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our failure to pay any interest on any debt security of that series when due, continued for 30 days;
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our failure to deposit any sinking fund payment, when due, in respect of any debt security of that series;
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our failure to perform any other of our covenants in the indenture which affects or is applicable to the debt securities of that series, other than a covenant included in the indenture solely for the benefit of
other series of debt securities, continued for 90 days after written notice as provided in the indenture;
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certain events involving bankruptcy, insolvency or reorganization; and
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any other event of default provided with respect to debt securities of that series. (Section 501)
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If an event of default with respect to outstanding debt securities of any series shall occur and be continuing, either the trustee or the holders of at least 25% in principal
amount of the outstanding debt securities of that series may declare the principal amount (or, if the debt securities of that series are original issue discount securities, the portion of the principal amount as may be specified in the terms of that
series) of all the debt securities of that series to be due and payable immediately. At any time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree based on acceleration has
been obtained, the holders of a majority in principal amount of the outstanding debt securities of that series may, under some circumstances, rescind and annul the acceleration. (Section 502) For information as to waiver of defaults, see the section
below entitled “Modification and Waiver.”
A prospectus supplement relating to each series of debt securities which are original issue discount securities will describe the particular provisions relating to acceleration of
the maturity of a portion of the principal amount of such original issue discount securities upon the occurrence of an event of default and its continuation.
During default, the trustee has a duty to act with the required standard of care. Otherwise, the indenture provides that the trustee will be under no obligation to exercise any of
its rights or powers under the indenture at the request or direction of any of the holders, unless the holders shall have offered to the trustee reasonable indemnity. (Section 603) If the provisions for indemnification of the trustee have been
satisfied, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any
trust or power conferred on the trustee, with respect to the debt securities of that series. (Section 512)
We will furnish to the trustee annually a certificate as to our compliance with all conditions and covenants under the indenture. (Section 1007)
Defeasance
The prospectus supplement will state if any defeasance provision will apply to the debt securities. Defeasance refers to the discharge of some or all of our obligations under the
indenture.
Defeasance and Discharge
We will be discharged from any and all obligations in respect of the debt securities of any series if we deposit with the trustee, in trust, money and/or U.S. government securities
which through the payment of interest and principal will provide money in an amount sufficient to pay the principal of and premium, if any, and each installment of interest on the debt securities of the series on the dates those payments are due and
payable.
If we defease a series of debt securities, the holders of the debt securities of the series will not be entitled to the benefits of the indenture, except for
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the rights of holders to receive from the trust funds payment of principal, premium and interest on the debt securities,
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our obligation to register the transfer or exchange of debt securities of the series,
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our obligation to replace stolen, lost or mutilated debt securities of the series,
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our obligation to maintain paying agencies,
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our obligation to hold monies for payment in trust, and
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the rights of holders to benefit, as applicable, from the rights, powers, trusts, duties and immunities of the trustee.
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We may defease a series of debt securities only if, among other things, we have delivered to the Trustee an opinion of counsel to the effect that we have received from, or there
has been published by, the U.S. Internal Revenue Service a ruling to the effect that holders and beneficial owners of the debt securities of the series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the
deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred. (Section 403)
Defeasance of Covenants and Events of Default
We may omit to comply with the covenants described above under “Restrictions on Secured Debt” (Section 1004) and “Restrictions on Sales and Leasebacks” (Section 1005), and the
failure to comply with these covenants will not be deemed an event of default (Section 501(4)), if we deposit with the trustee, in trust, money and/or U.S. government securities which through the payment of interest and principal will provide money in
an amount sufficient to pay the principal of and premium, if any, and each installment of interest on the debt securities of the series on the dates those payments are due and payable. Our obligations under the indenture and the debt securities of the
series will remain in full force and effect, other than with respect to the defeased covenants and related events of default.
We may defease the covenants and the related events of default described above only if, among other things, we have delivered to the trustee an opinion of counsel, who may be our
employee or counsel, to the effect that the holders and beneficial owners of the debt securities of the series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and defeasance of the covenants and
events of default, and the holders and beneficial owners of the debt securities of the series will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if the deposit and
defeasance had not occurred. (Section 1006)
If we choose covenant defeasance with respect to the debt securities of any series as described above and the debt securities of the series are declared due and payable because of
the occurrence of any event of default other than the event of default described in clause (4) under “Events of Default,” the amount of money and U.S. government securities on deposit with the trustee will be sufficient to pay amounts due on the debt
securities of the series at the time of their stated maturity. The amount on deposit with the trustee may not be sufficient to pay amounts due on the debt securities of the series at the time of the acceleration resulting from the event of default.
However, we will remain liable for these payments.
Modification and Waiver
Procter & Gamble and the trustee may make modifications of and amendments to the indenture if the holders of at least a majority in principal amount of the outstanding debt
securities of each series affected by the modification or amendment consent to the modification or amendment.
However, the consent of the holder of each debt security affected will be required for any modification or amendment that
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changes the stated maturity of the principal of, or any installment of principal of or interest on, any debt security,
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•
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reduces the principal amount of, or the premium, if any, or interest, if any, on, any debt security,
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reduces the amount of principal of an original issue discount security payable upon acceleration of the maturity of the security,
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changes the place or currency of payment of principal of, or premium, if any, or interest, if any, on, any debt security,
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impairs the right to institute suit for the enforcement of any payment on any debt security, or
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•
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reduces the percentage in principal amount of debt securities of any series necessary to modify or amend the indenture or to waive compliance with various provisions of the indenture or to waive various defaults.
(Section 902)
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Without the consent of any holder of debt securities, we and the trustee may make modifications or amendments to the indenture in order to
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evidence the succession of another person to us and the assumption by that person of the covenants in the indenture,
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add to the covenants for the benefit of the holders,
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add additional events of default,
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permit or facilitate the issuance of securities in bearer form or uncertificated form,
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add to, change, or eliminate any provision of the indenture in respect of a series of debt securities to be created in the future,
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secure the securities as required by “—Restrictive Covenants-Restrictions on Secured Debt,”
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establish the form or terms of securities of any series,
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•
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evidence the appointment of a successor trustee, or
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•
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cure any ambiguity, correct or supplement any provision which may be inconsistent with another provision, or make any other provision, provided that any action may not adversely affect the interests of holders of
debt securities in any material respect. (Section 901)
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The holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive
compliance by us with various restrictive provisions of the indenture. (Section 1008)
The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders of all debt securities of that series waive any past
default with respect to that series, except
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•
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a default in the payment of the principal of or premium, if any, or interest on any debt security of that series, or
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a default in respect of a provision which under the indenture cannot be modified or amended without the consent of the holder of each outstanding debt security of that series that would be affected. (Section 513)
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Consolidation, Merger and Sale of Assets
If the conditions below are met, we may, without the consent of any holders of outstanding debt securities:
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consolidate or merge with or into another entity, or
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transfer or lease our assets as an entirety to another entity.
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We have agreed that we will engage in a consolidation, merger or transfer or lease of assets as an entirety only if
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either we are the surviving entity or the entity formed by the consolidation or into which we are merged or which acquires or leases our assets is a corporation, partnership, limited liability company or trust
organized and existing under the laws of any United States jurisdiction and assumes our obligations on the debt securities and under the indenture,
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after giving effect to the transaction no event of default would have happened and be continuing, and
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various other conditions are met. (Article Eight)
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Regarding the Trustee
Deutsche Bank Trust Company Americas is the trustee under the indenture. In addition, affiliates of Deutsche Bank Trust Company Americas may perform various commercial banking and
investment banking services for Procter & Gamble and its subsidiaries from time to time in the ordinary course of business.
General
We may sell debt securities in one or more transactions from time to time to or through underwriters, who may act as principals or agents, directly to other purchasers or through
agents to other purchasers.
A prospectus supplement relating to a particular offering of debt securities may include the following information:
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the terms of the offering,
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the names of any underwriters or agents,
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the purchase price of the securities,
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the net proceeds from the sale of the securities,
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any delayed delivery arrangements,
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any underwriting discounts and other items constituting underwriters’ compensation,
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any initial public offering price, and
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any discounts or concessions allowed or reallowed or paid to dealers.
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The distribution of the debt securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing
at the time of sale, at prices related to prevailing market prices or at negotiated prices.
Underwriting Compensation
In connection with the sale of debt securities, underwriters may receive compensation from us or from purchasers for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters may sell debt securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom
they may act as agents.
Underwriters, dealers and agents that participate in the distribution of debt securities may be deemed to be underwriters under the Securities Act. Any discounts or commissions
that they receive from us and any profit that they receive on the resale of debt securities may be deemed to be underwriting discounts and commissions under the Securities Act. If any entity is deemed an underwriter or any amounts deemed underwriting
discounts and commissions, the prospectus supplement will identify the underwriter or agent and describe the compensation received from us.
Indemnification
We may enter agreements under which underwriters and agents who participate in the distribution of debt securities may be entitled to indemnification by us against various
liabilities, including liabilities under the Securities Act, and to contribution with respect to payments which the underwriters, dealers or agents may be required to make.
Related Transactions
Various of the underwriters who participate in the distribution of debt securities, and their affiliates, may perform various commercial banking and investment banking services for
us from time to time in the ordinary course of business.
Delayed Delivery Contracts
We may authorize underwriters or other persons acting as our agents to solicit offers by institutions to purchase debt securities from us pursuant to contracts providing for
payment and delivery on a future date. These institutions may include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases we must approve these
institutions. The obligations of any purchaser under any of these contracts will be subject to the condition that the purchase of the debt securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and other agents will not have any responsibility in respect of the validity or performance of these contracts.
No Established Trading Market
The debt securities, when first issued, will have no established trading market. Any underwriters or agents to or through whom we sell debt securities for public offering and sale
may make a market in the securities but will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of the trading market for the debt securities.
Price Stabilization and Short Positions
If underwriters or dealers are used in the sale, until the distribution of the securities is completed, rules of the SEC may limit the ability of any underwriters to bid for and
purchase the securities. As an exception to these rules, representatives of any underwriters are permitted to engage in transactions that stabilize the price of the securities. These transactions may consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the securities. If the underwriters create a short position in the securities in connection with the offering, i.e., if they sell more securities than are set forth on the cover page of the prospectus
supplement, the representatives of the underwriters may reduce that short position by purchasing securities in the open market.
We make no representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of the securities. In addition,
we make no representation that the representatives of any underwriters will engage in these transactions or that these transactions, once commenced, will not be discontinued without notice.
In connection with particular offerings of the securities in the future, and if stated in the applicable prospectus supplement, the validity of those securities may be passed upon
for The Procter & Gamble Company by Jennifer Henkel, Director and Assistant General Counsel or any Counsel, Senior Counsel or Assistant General Counsel of the Company, and with respect to matters of New York law, by Fried, Frank, Harris, Shriver
& Jacobson LLP. In addition, the validity of those securities may be passed upon for any underwriters or agents by Fried, Frank, Harris, Shriver & Jacobson LLP or other counsel for the underwriters. Ms. Henkel or other counsel for the Company
may rely as to matters of New York law upon the opinion of Fried, Frank, Harris, Shriver & Jacobson LLP or other counsel for the underwriters. Fried, Frank, Harris, Shriver & Jacobson LLP or other counsel for the underwriters may rely as to
matters of Ohio law upon the opinion of Ms. Henkel or other counsel for the Company. Fried, Frank, Harris, Shriver & Jacobson LLP performs legal services for Procter & Gamble and its subsidiaries from time to time.
The financial statements incorporated in this Prospectus by reference from the Company's Annual Report on Form 10-K, as amended, for the year ended June 30,
2020, and the effectiveness of the Procter & Gamble Company's internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are
incorporated herein by reference. Such financial statements have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” into this document the information which Procter & Gamble filed with the SEC. This means that we can disclose
important information by referring you to those documents. Any information referred to in this way is considered part of this prospectus from the date we file that document. The information incorporated by reference is an important part of this
prospectus and information that Procter & Gamble files later with the SEC will automatically update and supersede this information. The following documents filed by the Company (File No. 1-434) with the SEC pursuant to the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), are incorporated herein by reference:
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The Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2020, as amended; and
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The Company’s Current Reports on Form 8-K filed on August 12, 2020, September 16, 2020, October 13, 2020, (SEC Accession No. 0001193125-20-268528), and October 15, 2020.
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All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this registration statement and
prospectus and prior to the filing of a post-effective amendment, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, but excluding any information furnished to, rather than filed
with, the SEC, shall be incorporated by reference herein and shall be deemed to be a part of this prospectus from the dates of filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration
statement and prospectus to the extent that a statement contained in any subsequent prospectus or prospectus supplement hereunder or in any document subsequently filed with the Commission which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement or prospectus. All documents incorporated by
reference into the Form S-3 of which this prospectus is a part are also incorporated by reference, unless the information therein is superseded by a later filing.
WHERE YOU CAN FIND MORE INFORMATION
The Company will provide without charge to each person to whom a copy of this prospectus is delivered, upon the oral or written request of such person, a copy of any or all of the
documents which are incorporated by reference in this prospectus, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference into such documents). Requests should be directed to:
The Procter & Gamble Company
Attn: Investor Relations
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
Telephone: (513) 983-2414
The Company files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document the Company has filed or will file
with the SEC from the SEC’s public website at www.sec.gov.
You may also get a copy of these reports from our website at www.pg.com. Please note, however, that we have not incorporated any
other information by reference from our website, other than the documents listed above.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with
different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume the information in this prospectus or any supplemental prospectus is accurate as of any date other than the date
on the front of those documents.
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution
The following is a statement of the expenses (all of which are estimated) to be incurred by the Registrant in connection with the distribution of the securities registered under
this registration statement:
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Amount
to be paid
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SEC registration fee
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$ (1)
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Legal fees and expenses
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(2)
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Fees and expenses of qualification under state securities laws (including legal fees)
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(2)
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Accounting fees and expenses
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(2)
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Printing fees
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(2)
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Trustee’s fees and expenses
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(2)
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Miscellaneous
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(2)
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Total
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$(2)
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__________________
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(1)
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Deferred in accordance with Rules 456(b) and 457(r) under the Securities Act.
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(2)
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These fees will be dependent on the type of securities offered and number of offerings and, therefore, cannot be estimated at this time.
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Item 15. Indemnification of Directors and Officers
Procter & Gamble
Set forth below is a description of certain provisions of the Ohio Revised Code (“ORC”) and the Company’s Regulations, as such provisions relate to the indemnification of the
directors and officers of the registrant. This description is intended only as a summary and is qualified in its entirety by reference to the ORC and the Company’s Regulations.
Section 1701 of the ORC provides that a corporation must indemnify its directors, officers, employees, and agents against expenses reasonably incurred in connection with a
successful defense (on the merits or otherwise) of any action, suit, or proceeding.
A corporation may indemnify its directors, officers, employees, and agents against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement, in
connection with actions, suits, or proceedings (except for derivative actions by or in the right of the corporation), whether civil, criminal, administrative, or investigative. The corporation may indemnify such persons if the individual has acted in
good faith and in a manner that the individual believed to be in the best interests of the corporation and, with respect to a criminal action, had no reasonable cause to believe their conduct was unlawful. The determination as to whether this standard
of conduct has been met must be made by the court, a majority of the disinterested directors, by independent legal counsel, or by the shareholders.
A similar standard applies in the case of derivative actions, except that indemnification may only extend to expenses, including attorney’s fees, incurred in connection the defense
or settlement of such action. If the person seeking indemnification has been found liable to the corporation in such an action, the court must approve the indemnification.
As permitted by the ORC, Article V of the Company’s Regulations require the Company to indemnify, to the fullest extent permitted by law, any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed claim, action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she (a) is or was a Director, officer or employee of
the Company or its subsidiaries, (b) is or was serving at the request of the Company or its subsidiaries as a director, trustee, officer, partner, managing member or position of similar capacity, or employee of a Company subsidiary or another
corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise (whether domestic or foreign, nonprofit or for profit), or (c) is or was providing to third party organizations volunteer services
that were duly authorized in accordance with the Company’s process for approval of such activities, against all liabilities and expenses actually and reasonable incurred by or imposed on him or her in connection with, or arising out of, any such claim,
action, suit or proceeding. This indemnity will be provided unless the person (a) failed to act in good faith, in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Company and its subsidiaries, (b) acted or
failed to act, in either case, with deliberate intent to cause injury to the Company and its subsidiaries or with reckless disregard for the best interests of the Company or its subsidiaries, or (c) knowingly engaged in criminal activity.
The Company’s Directors, officers and certain other key employees of the Company are insured by directors and officers liability insurance policies. The Company pays the premiums
for this insurance.
The form of Underwriting Agreement provides for indemnification of the Company and its directors, officers and certain other persons under certain circumstances described therein
by each underwriter participating in an offering of debt securities.
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Item 16.
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Exhibits
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Exhibit
No.
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Description
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Incorporated by
Reference to Filings
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(1)(a)
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*
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(4)(a)
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**
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(4)(b)
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**
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(5)(a)
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*
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(5)(b)
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*
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(23)(a)
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*
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(23)(b)
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*
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(23)(c)
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*
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(24)(a)
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*
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(25)(a)
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*
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*
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Filed herewith.
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**
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Previously filed.
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Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its
securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) That, for purposes of determining any liability under the Securities Act of 1933, each filing of The Procter & Gamble Company’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Procter & Gamble Company certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cincinnati, State of Ohio, on the 19th day of October, 2020.
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THE PROCTER & GAMBLE COMPANY
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By:
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/s/ Jon R. Moeller
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Name:
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Jon R. Moeller
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Title:
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Vice Chairman, Chief Operating Officer and Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on October 19, 2020.
*
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Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer)
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David S. Taylor
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*
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Vice Chairman, Chief Operating Officer and Chief Financial Officer (Principal Financial Officer)
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Jon R. Moeller
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*
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Controller and Treasurer and Group Executive Vice President - Company Transition Leader (Principal Accounting Officer)
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Valarie L. Sheppard
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*
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Director
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Francis S. Blake
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*
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Director
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Angela F. Braly
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*
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Director
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Amy L. Chang
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*
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Director
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Joseph Jimenez
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*
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Director
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Debra L. Lee
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*
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Director
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Terry J. Lundgren
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*
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Director
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Christine M. McCarthy
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*
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Director
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W. James McNerney, Jr.
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*
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Director
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Nelson Peltz
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*
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Director
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Margaret C. Whitman
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*
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Director
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Patricia A. Woertz
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*By:
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/s/ Deborah P. Majoras
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Deborah P. Majoras as Attorney-in-Fact
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Exhibit (1)(a)
The Procter & Gamble Company
Debt Securities
Underwriting Agreement
[DATE]
To the Underwriters named in the
respective Pricing Agreement(s)
hereinafter described
Dear Sirs/Mesdames:
From time to time The Procter & Gamble Company (the “Company”) proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting
the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the “Securities”) specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the
“Designated Securities”), less the principal amount of Designated Securities covered by Delayed Delivery Contracts, if any, as provided in Section 3 hereof and as may be specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, any Designated Securities to be covered by Delayed Delivery Contracts being herein sometimes referred to as “Contract Securities” and the Designated Securities to be purchased by the Underwriters (after giving effect to the deduction, if
any, for Contract Securities) being herein sometimes referred to as “Underwriters’ Securities”).
The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the
“Indenture”) identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term
“Representatives” also refers to a single firm acting as sole representative of the Underwriters and to Underwriters who act without any firm being designated as their representative. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase any of the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of the Underwriters
to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, the principal
amount of such Designated Securities to be purchased by each Underwriter and whether any of such Designated Securities shall be covered by Delayed Delivery Contracts (as defined in Section 3 hereof) and the commission payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. The Pricing Agreement also may specify such additional terms and conditions as the parties thereto may agree. The Pricing Agreement shall include a Schedule III specifying (a)
materials other than the Pricing Prospectus (as defined below) that comprise the Pricing Disclosure Package (as defined below) and (b) Issuer Free Writing Prospectuses (as defined below) not included in the Pricing Disclosure Package. A Pricing
Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, the
Underwriters that:
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(a)
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An “automatic registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333- ) in respect of the Securities has been filed with the Securities and Exchange Commission
(the “Commission”) not earlier than three years prior to the date of the Pricing Agreement in the form heretofore delivered or to be delivered to the Underwriters; such registration statement and any post-effective amendment thereto became
effective upon filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, 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 (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus
supplement) relating to the Designated Securities, which has heretofore been or is required to be filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such
registration statement, including all documents incorporated by reference therein and exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Designated Securities that is or shall be filed with the
Commission pursuant to Rule 424(b) under the Act and deemed by virtue of Rule 430B under the Act to be part of such registration statement, each such part as amended at the time such registration statement became effective (or at the time
deemed to be a new effective date of such registration statement pursuant to Rule 430B under the Act), being hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented by any Preliminary
Prospectus immediately prior to the Applicable Time (as defined in Section 2(b) hereof), is hereinafter called the “Pricing Prospectus”; the final prospectus relating to the Designated Securities in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(b) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on or before the
date of this Agreement, or the issue date of such Basic Prospectus, Pricing Prospectus, Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement with respect to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of this Agreement, or the issue date of the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus
or Prospectus, as the case may be, and prior to the completion of the offering, under the Exchange Act, and deemed to be incorporated by reference therein; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating
to the Designated Securities is hereinafter called an “Issuer Free Writing Prospectus”);
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(b)
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For the purposes of this Agreement and the Pricing Agreement, the “Applicable Time” shall be such time as specified in the Pricing Agreement; as of the Applicable Time, neither (x) the Pricing Prospectus as supplemented by those Issuer Free
Writing Prospectuses and other documents and information listed in Schedule III(a) to the Pricing Agreement (including any final term sheet), taken together (collectively, the “Pricing Disclosure Package”), nor (y) any Issuer Free Writing
Prospectus listed on Schedule III(b) to the Pricing Agreement when considered together with the Pricing Disclosure Package, included any untrue statement of a material fact or omitted 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; provided, however, that this representation and warranty shall not apply to statements or omissions made in the Pricing Disclosure Package or any
Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use therein; and each Issuer Free
Writing Prospectus listed on Schedule III(a) or Schedule III(b) to the Pricing Agreement as of its issue date and at all subsequent times through the completion of the offer and sale of the Designated Securities to which such Issuer Free
Writing Prospectus relates, did not, does not and will not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus;
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(c)
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The documents incorporated by reference in the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act
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 not misleading; and any further documents so filed and incorporated by reference in the Pricing Prospectus, the Prospectus and any amendment or supplement thereto, when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented related to such Securities;
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(d)
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No order preventing or suspending the use of the Basic Prospectus, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission and no proceeding for that purpose has been initiated or
threatened by the Commission; the Registration Statement, on the effective date (as such effective date is defined in Rule 158(c) under the Act) conformed in all material respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”) and the respective rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and, at the time the Prospectus is filed with the Commission and at the Time of Delivery (as defined in Section 4 hereof), the Prospectus will conform in all material respects with the
Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of the Designated
Securities through the Representatives expressly for use in the Registration Statement or the Prospectus, as the case may be;
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(e)
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Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus and the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree which is material to the Company and its subsidiaries considered as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus; and, since the respective dates as of which information is given in the Registration Statement, the Pricing Prospectus and the Prospectus, there has not
been any material change in the capital stock or long-term debt of the Company or in the consolidated capitalization of the Company and its consolidated subsidiaries or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Pricing Prospectus and the Prospectus;
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(f)
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The Securities have been duly authorized by the Company, and, when Designated Securities are issued and delivered at the Time of Delivery (as defined in Section 4 hereof) pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities and, in the case of any Contract Securities, pursuant to Delayed Delivery Contracts with respect to such Contract Securities, such Designated Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles, and entitled to the benefits provided by the Indenture, which will be substantially in the form filed as an exhibit to the Registration Statement;
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(g)
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The Indenture has been duly authorized by the Company and at the Time of Delivery will be duly qualified under the Trust Indenture Act and will constitute a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and the Securities and the Indenture will conform to the descriptions thereof in the Pricing Disclosure Package and Prospectus, as amended or supplemented;
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(h)
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This Agreement has been duly authorized, executed and delivered by the Company;
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(i)
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In the event any of the Securities are purchased pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts has been duly authorized by the Company and, when executed and delivered by the Company and the purchaser named
therein, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles; and any Delayed Delivery Contracts will conform to the description thereof in the Pricing Disclosure Package and Prospectus, as amended or supplemented;
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(j)
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The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture, each of the Delayed Delivery Contracts, if any, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its domestic Significant Subsidiaries (as defined below) is a party or by which the Company or any of its domestic Significant Subsidiaries is bound or to which any of the property
or assets of the Company or any of its domestic Significant Subsidiaries is subject, nor will such action result in any violation of the provisions of the Amended Articles of Incorporation, Regulations or By Laws of the Company or any
applicable statute or any applicable order, rule or regulation known to the Company of any court or governmental agency or body having jurisdiction over the Company or any of its domestic Significant Subsidiaries or any of its or their
properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement or any Pricing Agreement or the Indenture or any Delayed Delivery Contract, except such as have been, or will have been prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters; (the
term “Significant Subsidiary” as used herein has the meaning set forth in Rule 1-02 of Regulation S-X under the Exchange Act);
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(k)
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There are no legal or governmental proceedings pending to which the Company or any of its domestic Significant Subsidiaries is a party or of which any property of the Company or any of its domestic Significant Subsidiaries is subject other
than (i) as set forth in the Pricing Prospectus and the Prospectus and (ii) legal or governmental proceedings which would not in the aggregate reasonably be expected to have a material adverse effect on the financial position, shareholders’
equity or results of operations of the Company and its subsidiaries considered as a whole; and no such proceedings are known by the Company to be threatened or contemplated by governmental authorities or threatened by others;
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(l)
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(A)(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 or will be by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act)
makes any offer relating to the Designated Securities in reliance on the exemption of Rule 163 under the Act, the Company was or is a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at (i) 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 Act) with respect to the Designated Securities
and (ii) the time of execution of this Agreement, the Company was not and is not an “ineligible issuer” as defined in Rule 405 under the Act;
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(m)
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The Company and its subsidiaries are in compliance in all material respects with applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder (“Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened;
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(n)
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Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries (i) is an individual or entity that is, or is 50% or greater
owned or otherwise controlled by an individual or entity that is, as of the date hereof listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S.
Department of State, the Bureau of Industry and Security of the U.S. Department of Commerce, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom or other relevant sanctions authority
(collectively, the “Sanctions Regimes” and such persons, “Sanctioned Persons”), (ii) is located, organized or resident in a country or territory that is, or whose government is, the subject of economic or financial sanctions or trade embargoes
imposed, administered or enforced from time to time by the Sanctions Regimes (“Sanctions”) that broadly prohibit dealings with such country or territory (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”) (as of the date
hereof, the Sanctioned Countries are Crimea, Cuba, Iran, North Korea and Syria) in any manner that would violate applicable Sanctions or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise
make available the proceeds of this offering to any subsidiary, joint venture partner or other individual or entity in any manner that would result in a violation of any Sanctions by any individual or entity participating in this offering,
whether as underwriter, advisor, investor or otherwise. The Company has instituted and maintains policies and procedures that the Company reasonably believes to be designed to promote compliance in all material respects by the Company and its
subsidiaries with Sanctions; and
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(o)
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Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent (to the extent such agents are acting on behalf of the Company or its subsidiaries), affiliate or employee of the Company or
any of its subsidiaries (i) is in violation in any material respect of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or any similar law of any other relevant jurisdiction applicable to the
Company or its subsidiaries from time to time that prohibit, restrict or regulate bribery or corruption, or the rules or regulations thereunder (collectively “Anti-Corruption Laws”) or (ii) will knowingly use the proceeds of this offering in
furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money or anything else of value to any person in violation of any Anti-Corruption Laws. The Company has instituted and maintains policies and
procedures that the Company reasonably believes to be designed to promote compliance by the Company and its subsidiaries with Anti-Corruption Laws.
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3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of the Underwriters’ Securities, the several Underwriters propose to offer the Underwriters’ Securities for sale upon the terms and conditions set forth in the Pricing
Prospectus as amended or supplemented.
The Company may specify in Schedule II to the Pricing Agreement applicable to any Designated Securities that the Underwriters are authorized to solicit offers to purchase
Designated Securities from the Company pursuant to delayed delivery contracts (herein called “Delayed Delivery Contracts”), substantially in the form of Annex II attached hereto but with such changes therein as the Representatives and the Company may
authorize or approve. If so specified, the Underwriters will endeavor to make such arrangements, and as compensation therefor the Company will pay to the Representatives for the accounts of the Underwriters, at the Time of Delivery, such commission, if
any, as may be set forth in such Pricing Agreement. Delayed Delivery Contracts, if any, are to be with investors of the types described in the Prospectus and subject to other conditions therein set forth. The Underwriters will not have any
responsibility in respect of the validity or performance of any Delayed Delivery Contracts.
The total principal amount of Underwriters’ Securities to be purchased by all the Underwriters pursuant to such Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the principal amount of the Contract Securities. The Company will deliver to the Representatives not later than 3:30 p.m., New York City time, on the second business day preceding the
Time of Delivery specified in the applicable Pricing Agreement (or such other time and date as the Representatives and the Company may agree upon in writing) a written notice setting forth the principal amount of Contract Securities.
4. Underwriters’ Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the extent practicable, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the
Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor in the funds and in the manner specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of
Delivery” for such Securities.
Concurrently with the delivery of and payment for the Underwriters’ Securities, the Company will deliver to the Representatives for the accounts of the Underwriters a check payable
to the order of the party designated in the Pricing Agreement relating to such Securities in the amount of any compensation payable by the Company to the Underwriters in respect of any Delayed Delivery Contracts as provided in Section 3 hereof and in
the Pricing Agreement relating to such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
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(a)
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To make no further amendment or any supplement to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the Prospectus after the date of the Pricing Agreement relating to such Securities and prior to the Time of
Delivery for such Securities to which the Representatives for such Securities, promptly after reasonable notice thereof, shall have reasonably disapproved; to advise the Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or has become effective or any amendment or supplement to any Issuer Free Writing
Prospectus or the Prospectus has been filed or mailed for filing, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any preliminary prospectus or other prospectus relating to the Securities,
of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of such Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any preliminary prospectus or other prospectus relating to the Securities or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
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(b)
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If required by Rule 430B(h) under the Act, to prepare a form of prospectus and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further
amendment or supplement to such form of prospectus to which the Representatives for such Securities, promptly after reasonable notice thereof, shall have reasonably disapproved;
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(c)
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Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the distribution of such Securities, provided that in connection therewith the Company shall not be
required to (i) qualify as a foreign corporation, (ii) file a general consent to service of process in any jurisdiction, or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject;
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(d)
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To furnish the Underwriters with written or electronic copies of the Pricing Prospectus and the Prospectus as amended or supplemented in such quantities as the Representatives may from time to time reasonably request, and, if the delivery of
a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the
Pricing Disclosure Package or the Prospectus as then amended or supplemented would include an 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 when such Pricing Disclosure Package or Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Pricing Disclosure Package or the Prospectus or to file under the Exchange Act any document incorporated by reference in the Pricing Disclosure Package or the Prospectus in order to
comply with the Act, the Exchange Act or the Trust Indenture Act or the respective rules thereunder, to notify the Representatives of such event and upon their request to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written or electronic copies as the Representatives may from time to time reasonably request of an amended Pricing Disclosure Package or Prospectus or a supplement to the Pricing Disclosure
Package or the Prospectus which will correct such statement or omission or effect such compliance;
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(e)
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To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as such effective date is defined in Rule 158(c) under the
Act), an earning statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Company Rule 158);
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(f)
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During the period beginning on the date of the Pricing Agreement for such Designated Securities and continuing to and including the earlier of (i) the termination of trading restrictions for such Designated Securities, as notified to the
Company by the Representatives and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives; and
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(g)
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To pay the required Commission filing fees relating to such Designated Securities within the time required by Rule 456(b)(1) under the Act and otherwise in accordance with
Rules 456(b) and 457(r) under the Act.
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6.
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(a)
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Except as provided in Section 6(b) below with respect to the Final Term Sheet (as defined below), (i) the Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the Designated Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act required to be filed by the Company with the Commission
under Rule 433 under the Act, and (ii) each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Designated Securities that would
constitute a free writing prospectus required to be filed by the Company with the Commission under Rule 433 under the Act, other than one or more term sheets relating to the Designated Securities containing customary information (which, in
their final form, will not be inconsistent with the Final Term Sheet) and conveyed to purchasers of such Designated Securities; and
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(b)
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The Company and each of the Underwriters each has complied and will comply with the requirements of Rule 433 under the Act to the extent applicable to any Issuer Free Writing
Prospectus. The Company has complied and will comply with the requirements of Rule 433 with regard to timely filing with the Commission or retention where required and legending of any Issuer Free Writing Prospectus. If the Representatives
prepare and timely provide to the Company a writing containing solely a description of the terms of the Designated Securities and of the offering, the Company will (i) review and (subject to such changes deemed appropriate by the Company and
the Representatives) approve, if requested by the Representatives in connection with the offer and sale of the Designated Securities, such writing (as so approved, the “Final Term Sheet”) and (ii) file such Final Term Sheet pursuant to Rule
433(d) under the Act.
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7. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal
Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as
provided in Section 5(c) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) any filing fees incident to any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of
any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with the Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder and
under any Delayed Delivery Contracts which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 9 and Section 12 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses and expenses of any “free writing prospectus” (as defined in Rule 405 under the Act), other than an Issuer
Free Writing Prospectus, that is used or referred to by the Underwriters connected with any offers they may make.
To the extent permitted by applicable law, the Company will indemnify and hold harmless the Underwriters from any documentary, stamp, stamp duty reserve or similar issue tax or
duty and any related interest or penalties on, and value added tax (if any) payable in respect of the execution of this Agreement or the issue, sale and delivery of the Securities to the subscribers which are or may be payable in any jurisdiction.
8. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company in or incorporated by reference
in such Pricing Agreement are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
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(a)
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No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;
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(b)
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Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the Underwriters, shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the validity of
the Indenture, the Designated Securities, the Delayed Delivery Contracts, if any, the Registration Statement, the Pricing Disclosure Package, the Prospectus as amended or supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely as to all matters
governed by Ohio law upon the opinion referred to in subsection (c) of this Section;
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(c)
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[NAME], Director and Assistant General Counsel for the Company, shall have furnished to the Underwriters his or her written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
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(i)
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The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Ohio, with corporate power and authority to own its properties and conduct its business as described in the
Pricing Disclosure Package and the Prospectus as amended or supplemented;
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(ii)
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The Company has an authorized capitalization as set forth in the Pricing Disclosure Package and the Prospectus as amended or supplemented 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;
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(iii)
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Each domestic Significant Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of
each such Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company or its domestic Significant Subsidiaries);
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(iv)
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The Company and each of its domestic Significant Subsidiaries are duly authorized and are in good standing to do business in each jurisdiction in the United States, other than their respective jurisdictions of incorporation, in which they
own or lease properties, or conduct any business, so as to require such qualification (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its domestic Significant Subsidiaries);
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(v)
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To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its domestic Significant Subsidiaries is a party or of which any property of the Company or any of its domestic
Significant Subsidiaries is the subject, other than as set forth in the Pricing Disclosure Package and the Prospectus and other than legal or governmental proceedings which would not in the aggregate reasonably be expected to have a material
adverse effect on the consolidated financial position, shareholders’ equity or results of operations of the Company and its subsidiaries considered as a whole; and, to the best of such counsel’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
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(vi)
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This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;
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(vii)
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In the event any of the Designated Securities are to be purchased pursuant to Delayed Delivery Contracts, each of such Delayed Delivery Contracts has been duly authorized, executed and delivered by the Company and, assuming such Contract has
been duly executed and delivered by the purchaser named therein, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and any Delayed Delivery Contracts conform to the description thereof in the Pricing Disclosure
Package and the Prospectus as amended or supplemented;
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(viii)
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The Designated Securities have been duly authorized; the Underwriters’ Securities have been duly executed, authenticated, issued and delivered and, assuming receipt by the Company of payment of the issue price of the Underwriters’
Securities, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors’ rights and to general equity principles, and entitled to the benefits provided by the Indenture; the Contract Securities, if any, when executed, authenticated, issued and delivered pursuant to
the Indenture and Delayed Delivery Contracts, if any, will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture; and the Designated Securities and the Indenture conform to the
descriptions thereof in the Pricing Disclosure Package and the Prospectus as amended or supplemented;
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(ix)
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The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;
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(x)
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The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, each of the Delayed Delivery Contracts, if any, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its domestic Significant Subsidiaries is a party or by which the Company or any of its domestic
Significant Subsidiaries is bound or to which any of the property or assets of the Company or any of its domestic Significant Subsidiaries is subject, nor will such action result in any violation of the provisions of the Amended Articles of
Incorporation, Regulations or By Laws of the Company or any applicable statute or any applicable order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its
domestic Significant Subsidiaries or any of its or their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body of the State of New York, the State of
Ohio or the United States of America is required for the issue and sale of the Designated Securities or the consummation by the Company of the other transactions contemplated by this Agreement or such Pricing Agreement or the Indenture or any
of such Delayed Delivery Contracts, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;
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(xi)
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The documents incorporated by reference in the Pricing Prospectus or the Prospectus, as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such
documents, when they were so filed, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading; and
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(xii)
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The Registration Statement as of the effective date (as such term is defined in Rule 158(c) under the Act) and the Prospectus as of its issue date, as amended or supplemented, (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; such counsel has no reason to believe
(x) that the Registration Statement, at the time it was deemed effective, 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 not
misleading; or (y) that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of
circumstances under which they were made, not misleading; or (z) that, as of its date and as of the Time of Delivery, the Prospectus or any such further amendment or supplement thereto made by the Company prior to the Time of Delivery contained
or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement, the Basic Prospectus or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required; and the statements in the Pricing Disclosure
Package and the Prospectus as amended or supplemented describing the Designated Securities are accurate and fairly present the information required or purported to be shown.
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In rendering such opinion or opinions, such counsel may rely as to all matters governed by New York law upon the opinions referred to in subsection (b) of this
Section;
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(d)
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On the date of the Pricing Agreement and at the Time of Delivery for such Designated Securities, Deloitte & Touche LLP, which has rendered its opinion on the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have furnished to the Representatives a comfort letter, in form and substance satisfactory to the Representatives;
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(e)
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(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus or the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus or the Prospectus, and (ii) since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or in the consolidated capitalization of the Company and its consolidated subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management,
financial position, shareholders’ equity or results of operations of the Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus or the Prospectus, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Pricing Prospectus or the Prospectus;
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(f)
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Subsequent to the date of the Pricing Agreement relating to the Designated Securities no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as
that term is defined under Section 3(a)(62) of the Exchange Act and no public announcement shall have been made by any such organization that it has under surveillance or review, with possible negative implications, its rating of any of the
Company’s debt securities;
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(g)
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Subsequent to the date of the Pricing Agreement relating to the Designated Securities there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock
Exchange or the over-the-counter market; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange or the over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or
elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Underwriters’ Securities on the
terms and in the manner contemplated in the Pricing Prospectus or the Prospectus; and
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(h)
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The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section, and as to such other matters as the Representatives may reasonably request.
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9.
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(a)
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The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, the Pricing Disclosure Package or any “issuer information” filed
or required to be filed pursuant to Rule 433(d) under the Act 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 will reimburse each Underwriter for any legal or other expenses reasonably incurred by each Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however,
that the Company shall 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 an untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, in reliance upon
and in conformity with written information furnished to the Company by the Underwriters of Designated Securities through the Representatives expressly for use therein.
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(b)
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Each of the Underwriters severally and not jointly will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure Package, 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, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or the Pricing Disclosure
Package, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
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(c)
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Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.
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(d)
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If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by such indemnified party 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 the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and such Underwriter on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by such Underwriter. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriter on the other and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint.
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(e)
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The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Underwriters and to each
person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
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10.
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(a)
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If any Underwriter shall default in its obligation to purchase the Underwriters’ Securities which it has agreed to purchase under the Pricing Agreement relating to such
Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Underwriters’ Securities on the terms contained herein. If within thirty-six hours after such default by any
Underwriter, the Representatives do not arrange for the purchase of such Underwriters’ Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory
to the Representatives to purchase such Underwriters’ Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such
Underwriters’ Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Underwriters’ Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such
Underwriters’ Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in
this Agreement and the Pricing Agreement with respect to such Securities shall include any person substituted under this Section with like effect as if such person had originally been a party to such Pricing Agreement with respect to such
Designated Securities.
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(b)
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If, after giving effect to any arrangements for the purchase of the Underwriters’ Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal
amount of such Underwriters’ Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Underwriters’ Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Underwriters’ Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
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(c)
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If, after giving effect to any arrangements for the purchase of the Underwriters’ Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal
amount of Underwriters’ Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase Underwriters’ Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9
hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
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11. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery
of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section
10 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Section 7 and Section 9 hereof; but, if for any other reason Underwriters’
Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriters with respect to
such Designated Securities except as provided in Section 7 and Section 9 hereof.
13. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be sufficient in all respects if delivered or sent by registered
mail to the address of the Underwriters as set forth in the Pricing Agreement; and if to the Company shall be sufficient in all respects if delivered, or sent by registered mail to the address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to any Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address which, if not set forth in the Pricing Agreement, will be
supplied to the Company by the Representatives upon request.
14. Each of the Company and the Underwriters acknowledges and agrees
that (i) 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 the Underwriters, on the other, and (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting (and shall at all times continue to act) solely as a principal and not the agent of the Company.
15. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section 9 and Section 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of each Pricing Agreement.
17. This Agreement, each Pricing Agreement and each of the Delayed
Delivery Contracts, if any, shall be governed by and construed in accordance with the laws of the State of New York.
18. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
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19.
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(a)
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In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this
Agreement and each Pricing Agreement, and any interest and obligation in or under this Agreement and each Pricing 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 each Pricing Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b)
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In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement and each Pricing 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 and each Pricing Agreement were governed by the
laws of the United States or a state of the United States.
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(c) As used in this section:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Very truly yours,
THE PROCTER & GAMBLE COMPANY
By:_______________________________
Name:
Title:
Accepted as of the date hereof:
By:
By: ___________________________
Name:
Title:
ANNEX I:
Pricing
Agreement
[DATE]
[Names of Representatives],
As representatives of the several Underwriters
named in Schedule I hereto,
c/o [Representatives]
[Address(es) of Representatives]
Dear Sirs/Mesdames:
The Procter & Gamble Company (the “Company”) proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated [DATE] (the “Underwriting Agreement”), to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”). The Representatives referred to herein and in the Underwriting Agreement are named in Schedule II hereto.
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty in Section 2 of the Underwriting Agreement which makes reference to the
Pricing Prospectus and the Prospectus shall be deemed to be a representation and warranty as of the date of the Underwriting Agreement in relation to the Pricing Prospectus and the Prospectus (as therein defined), and also a representation and warranty
as of the date of this Pricing Agreement in relation to the Pricing Prospectus and the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement, each representation and warranty in
Section 2 of the Underwriting Agreement which makes reference to the Pricing Disclosure Package shall be deemed to be a representation and warranty as of the Applicable Time (as set forth in Schedule II hereto) in relation to the Pricing Disclosure
Package (as therein defined). Each reference to the Underwriters herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The address of the Underwriters referred to in Section 13 of the Underwriting Agreement is set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed, or in the case of a supplement mailed for
filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to the Underwriters, and the Underwriters agree to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth in Schedule I hereto, less the principal amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as may be specified in such Schedule II.
Each Underwriter severally and not jointly agrees that, notwithstanding anything herein to the contrary, it will not offer, sell or deliver any of the Designated Securities in any jurisdiction outside the United States except under circumstances
that will result in compliance with the applicable laws thereof. Each Underwriter severally and not jointly acknowledges that, notwithstanding anything herein to the contrary, no action has been taken to permit a public offering in any jurisdiction
outside the United States where action would be required for such purpose.
Each Underwriter severally and not jointly represents and agrees that any Designated Securities which are the subject of the offering contemplated by this Pricing Agreement may not be offered, sold or otherwise made available and will not offer,
sell or otherwise make available any Designated Securities to any retail investor in the European Economic Area or in the United Kingdom. For the purposes of this provision:
(a) the expression “retail investor” means a person who is one (or more) of the following:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as
amended, “MiFID II”); or
(ii) a customer within the meaning of Directive (EU) 2016/97 (the “Insurance Distribution
Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or
(iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (the “Prospectus
Regulation”); and
(b) the expression “offer” includes the communication in any form and by any means of sufficient information
on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe the Designated Securities.
Each Underwriter severally and not jointly represents, warrants and agrees that the Pricing Prospectus and the Prospectusand any other material in relation to the Designated Securities are only being distributed to and are only directed at persons
in the United Kingdom that (i) have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Order”), (ii) are persons
falling within Article 43(2) of the Order, (iii) are persons falling within Article 49(2)(a) to (d) (high net worth companies, unincorporated associations, etc.) of the Order or (iv) are persons to whom an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) in connection with the issue or sale of any Designated Securities may otherwise lawfully be communicated or caused to be communicated
(all such persons in (i), (ii), (iii) and (iv) together being “relevant persons”).
Each Underwriter severally and not jointly agrees that the Designated Securities may not be offered or sold by means of any document other than (i) in circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (ii) to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap.571, Laws of Hong Kong) and any rules made thereunder, or (iii) in other circumstances which do not result in the
document being a “prospectus” within the meaning of the Companies Ordinance (Cap.32, Laws of Hong Kong), and no advertisement, invitation or document relating to the Designated Securities may be issued or may be in the possession of any person for the
purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the laws of Hong Kong) other than with
respect to Designated Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” within the meaning of the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules
made thereunder.
Each Underwriter severally and not jointly acknowledges and agrees that the Designated Securities have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (the “Financial Instruments and Exchange Law”) and
each Underwriter severally and not jointly agrees that it will not offer or sell any Designated Securities, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in
Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements
of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.
Each Underwriter severally and not jointly acknowledges and agrees that the Pricing Prospectus and the Prospectus have not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, the Pricing Prospectus, the Prospectus,
any free writing prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Designated Securities may not be circulated or distributed, nor may the Designated Securities be
offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289
of Singapore (the SFA), (ii) to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in Section 275 of the SFA or
(iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the Designated Securities are subscribed or purchased under Section 275 by a relevant person which is: (a) a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold
investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each
beneficiary of the trust is an accredited investor, securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferable for six months after
that corporation or that trust has acquired the Designated Securities under Section 275 of the SFA except: (1) to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to
in Section 275(1A) or Section 276(4)(i)(B) of the SFA; (2) where no consideration is or will be given for the transfer; (3) where the transfer is by operation of law; (4) as specified in Section 276(7) of the SFA; or (5) as specified in Regulation 32
of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore.
If the foregoing is in accordance with your understanding, please sign and return to us counterparts hereof, and upon acceptance hereof by you this letter and such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement among the Underwriters and the Company.
Very truly yours,
THE PROCTER & GAMBLE COMPANY
By:
Name:
Title:
Accepted as of the date hereof:
By:
By:___________________________
Name:
Title:
SCHEDULE I
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Principal Amount of Designated Securities to be Purchased
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$
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Total ................................................................................................................................
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SCHEDULE II
Title of Designated Securities: [ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due
Aggregate Principal Amount: $[ ]
Price to Public:
_____% of the principal amount of the Designated Securities, plus accrued interest from _____if settlement occurs after that date [and accrued amortization, if any, from _____ to _____]
Purchase Price by Underwriters:
_____% of the principal amount of the Designated Securities, plus accrued interest from _____if settlement occurs after that date [and accrued amortization, if any, from _____ to _____]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the Company in [New York Clearing House] [same day] funds] [By wire transfer of immediately available funds payable to the order of
the Company or its designee] [Other specified method]
Indenture:
Indenture, dated as of September 3, 2009, between the Company and Deutsche Bank Trust Company Americas, as Trustee, including the Officer’s Certificate to be dated ______, with respect to the terms of the
Designated Securities
Applicable Time:
[Time and date], 20__.
Time of Delivery:
[Time and date], 20__.
Closing Location:
Names and Addresses of Underwriters:
Designated Representatives:
Securities Exchange:
[None] [Securities to be listed on the [New York] Stock Exchange]
Delayed Delivery:
[None] [Underwriters’ commission shall be _____% of the principal amount of Designated Securities for which Delayed Delivery Contracts have been entered into. Such commission shall be payable to the order
of ____________________].
Maturity:
Interest Rate:
[_____%] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the sinking fund, in whole or in part at the option of the Company, in the amount of $_____ or an integral multiple thereof, _____] [on or
after _____ , _____ at the following redemption prices (expressed in percentages of principal amount). If [redeemed on or before _____ , _____%, and if] redeemed during the 12-month period beginning _____ ,
YEAR REDEMPTION PRICE
and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after_____ ,_____ , at the election of the Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[None]
[The Designated Securities are entitled to the benefit of a sinking fund to retire $_____ principal amount of Designated Securities on__________ in each of the years _____ through _____ at 100% of their
principal amount plus accrued interest] [_____ , together with [cumulative] [non-cumulative] redemptions at the option of the Company to retire an additional $_____ principal amount of Designated Securities in the years _____ through _____ at 100% of
their principal amount plus accrued interest.]
[If Securities are Extendible Debt Securities, insert-
Extendible Provisions:
Securities are repayable on __________,_____[insert date and years], at the option of the holder, at their principal amount with accrued interest. Initial annual interest rate will be _____%, and
thereafter annual interest rate will be adjusted on __________, _____ and __________ to a rate not less than _____% of the effective annual interest rate on U.S. Treasury obligations with ____-year maturities as of the [insert date 15 days prior to
maturity date] prior to such [insert maturity date].].
[If Securities are Floating Rate Debt Securities, insert-
Floating Rate Provisions:
Initial annual interest rate will be _____% through _____ [and thereafter will be adjusted [monthly] [on each _____, _____, _____ and _____] [to an annual rate of _____% above the average rate for
____-year [month] [securities] [certificates of deposit] by _____ and _____ [insert names of banks].] [and the annual interest rate [thereafter] [from _____ through _____] will be the interest yield equivalent of the weekly average per annum market
discount rate for ____-month Treasury bills plus _____% of Interest Differential (the excess, if any, of (i) then current weekly average per annum secondary market yield for ____-month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate of ____-month Treasury bills); [from _____ and thereafter the rate will be the then current yield equivalent plus _____% of Interest Differential].]
Defeasance:
[The provisions of Sections 403 and 1006 of the Indenture relating to defeasance shall apply to the Designated Securities.]
[Other Terms]: [A description of particular tax, accounting or other unusual features of the Securities may be set forth, or referenced to an attached and accompanying description, if necessary, to the
issuer’s understanding of the transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus Supplement for the offering.]
SCHEDULE III(a)
[List of materials other than the Pricing Prospectus that comprise the Pricing Disclosure Package]
SCHEDULE III(b)
[Issuer Free Writing Prospectuses, if any, not included in the Pricing Disclosure Package]
Annex II:
Delayed Delivery Contract
__________, 20__
THE PROCTER & GAMBLE COMPANY,
c/o [Name and address of appropriate Representatives].
Attention:
Dear Sirs/Mesdames:
The undersigned hereby agrees to purchase from The Procter & Gamble Company (hereinafter called the “Company”), and the Company agrees to sell to the Undersigned [$] principal amount of the Company’s
[Title of Designated Securities] (hereinafter called the “Designated Securities”), offered by the Company’s Prospectus dated __________, 20 , as amended or supplemented, receipt of a copy of which is hereby acknowledged, at a purchase price of [%] of
the principal amount thereof [, plus accrued interest from the date from which interest accrues as set forth below,] [and accrued amortization, if any, from [__________] [the date from which interest accrues as set forth below]] and on the further
terms and conditions set forth in this contract. The undersigned will purchase the Designated Securities from the Company on ____________________ , 20 , (the “Delivery Date”) and interest on the Designated Securities so purchased will accrue from
_______________, 20 . [The undersigned will purchase the Designated Securities from the Company on the delivery date or dates and in the principal amount or amounts set forth below:
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Delivery Date
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Principal Amount
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Date From Which Interest Accrues
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Each such date on which Designated Securities are to be purchased hereunder is hereinafter referred to as a “Delivery Date”.]
Payment for the Designated Securities which the undersigned has agreed to purchase on [the] [each] Delivery Date shall be made to [the Company or its order by certified or official bank check in [New York
Clearing House] [same day] funds at the office of ____________________ , or by wire transfer of immediately payable funds to a bank account specified by the Company] [or specify other means], on [the] [such] Delivery Date upon delivery to the
undersigned of the Designated Securities then to be purchased by the undersigned in definitive fully registered form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communications
addressed to the Company not less than five full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for Designated Securities on [the] [each] Delivery Date shall be subject to the condition that the purchase of Designated Securities
to be made by the undersigned shall not on [the] [such] Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject. The obligation of the undersigned to take delivery of and make payment for Designated Securities
shall not be affected by the failure of any purchaser to take delivery of and make payment for Designated Securities pursuant to other contracts similar to this contract.
[The undersigned understands that underwriters (the “Underwriters”) are also purchasing Designated Securities from the Company, but that the obligations of the undersigned hereunder are not contingent on
such purchases. Promptly after completion of the sale to the Underwriters the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.]
The undersigned represents and warrants that, as of the date of this contract, the undersigned is not prohibited from purchasing the Designated Securities hereby agreed to be purchased by it under the laws
of the jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the
other.
This contract may be executed by either of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the
same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery Contract (including this contract) is in the Company’s sole discretion and that, without limiting the foregoing, acceptances of
such contracts need not be on a first-come, first-served basis. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at
its address set forth below. This will become a binding contract between the Company and the undersigned when such counterpart is so mailed or delivered by the Company.
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Yours very truly,
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(Name of Purchaser)
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By:
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[NAME]
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Accepted, ____________________, 20__.
THE PROCTER & GAMBLE COMPANY
E
Exhibit (5)(b)
[Letterhead of Fried, Frank, Harris, Shriver & Jacobson LLP]
October 19, 2020
The Procter & Gamble Company
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
Ladies and Gentlemen:
We are acting as counsel to The Procter & Gamble Company, an Ohio corporation (the “Company”), in connection with the Registration Statement on Form S-3, as may be amended from time to time (the “Registration
Statement”), under the Securities Act of 1933, as amended (the “Securities Act”), with respect to the contemplated issuance from time to time, as set forth in the prospectus contained in the Registration Statement (the “Prospectus”) and as may be set
forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”) by the Company of an unlimited amount of one or more series of debt securities of the Company (the “Debt Securities”). In connection with any such contemplated
issuance from time to time, we may pass upon the validity of the Debt Securities for any underwriters or agents. With your permission, all assumptions and statements of reliance herein have been made without any independent investigation or
verification on our part, and we express no opinion with respect to the subject matter or accuracy of such assumptions or items relied upon.
The Debt Securities may be issued pursuant to an indenture, dated September 3, 2009, by and between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Indenture”) filed as Exhibit (4)(a) to the
Registration Statement. Deutsche Bank Trust Company Americas serves as trustee for the Indenture and is referred to herein as the “Trustee.”
In connection with this opinion, we have (i) investigated such questions of law, (ii) examined originals or certified, conformed, electronic or reproduction copies, of such agreements, instruments, documents and records of
the Company, such certificates of public officials and such other documents, and (iii) received such information from officers and representatives of the Company and others as we have deemed necessary or appropriate for the purposes of this opinion.
We have examined, among other documents, the following:
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(b)
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a specimen form of the Debt Securities.
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The documents referred to in items (a) and (b) above are referred to herein collectively as the “Documents.”
In all such examinations, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of original and certified documents and the conformity to original or certified
documents of all copies submitted to us as certified, conformed, electronic or reproduction copies. As to various questions of fact relevant to the opinion expressed herein, we have relied upon, and assume the accuracy of, the representations and
warranties contained in the Documents, certificates and oral or written statements and other information of or from officers or other appropriate representatives of the Company and others and assume compliance on the part of all parties to the
Documents with the covenants and agreements contained therein.
We have assumed, for purposes of the opinion expressed herein, that (i) all of the parties to the Documents are validly existing and in good standing under the laws of their respective jurisdictions of organization; (ii)
all of the parties to the Documents have the power and authority to (a) execute and deliver the Documents, (b) perform their obligations thereunder and (c) consummate the transactions contemplated thereby; (iii) each of the Documents has been duly
authorized, executed and delivered by all of the parties thereto; (iv) each of the Documents constitutes a valid and binding obligation of all the parties thereto (other than as expressly addressed in the opinion below as to the Company), enforceable
against such parties in accordance with its terms; (v) all of the parties to the Documents will comply with all laws applicable thereto; and (vi) the Debt Securities will conform to the specimens thereof examined by us.
Based upon the foregoing and subject to the limitations, qualifications and assumptions set forth herein, we are of the opinion that when (i) the Registration Statement, and any amendments thereto (including any
post-effective amendments) have become effective under the Securities Act, (ii) a Prospectus Supplement has been prepared and filed with the Securities and Exchange Commission describing the Debt Securities offered thereby and is in compliance, at all
times, with all applicable laws, (iii) the terms of the issuance and sale of the Debt Securities have been established in conformity with the Indenture and duly approved by the Company in conformity with the Company’s Amended Articles of Incorporation,
Regulations and the By Laws and all other necessary corporate action on the part of the Company has been taken in connection therewith and in a manner so as not to violate any applicable law or result in a default under or breach of any agreement or
instrument then binding on the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, (iv) the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, (v) a definitive purchase, underwriting or similar agreement and any other necessary agreement with respect to the Debt Securities has been duly authorized and validly executed and delivered by the Company and the other parties
thereto, and (vi) the Debt Securities have been duly authenticated by the Trustee and duly executed and delivered on behalf of the Company against payment therefor in accordance with the terms of the Indenture, in accordance with the terms of the
agreement under which they are sold and in the manner contemplated by the Registration Statement and/or the applicable Prospectus Supplement, such Debt Securities will constitute valid and binding obligations of the Company.
The opinion set forth above is subject to the following qualifications:
(i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws (or related judicial
doctrines) now or hereafter in effect affecting creditors’ rights and remedies generally;
(ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair
dealing and reasonableness, equitable defenses and limits as to the availability of equitable remedies), whether such principles are considered in a proceeding in equity or at law; and
(iii) the application of any applicable fraudulent conveyance, fraudulent transfer, fraudulent obligation, or
preferential transfer law or any law governing the distribution of assets of any person now or hereafter in effect affecting creditors’ rights and remedies generally.
We express no opinion as to:
(i) the validity, binding effect or enforceability of any provision of the Documents
relating to indemnification, contribution or exculpation;
(ii) the validity, binding effect or enforceability of any provision of the Documents
related to (a) forum selection or submission to jurisdiction (including, without limitation, any waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum) to the extent that the validity, binding effect or
enforceability of any such provision is to be determined by any court other than a court of the State of New York, or (b) choice of governing law to the extent that the validity, binding effect or enforceability of any such provision is to be
determined by any court other than a court of the State of New York or a federal district court sitting in the State of New York, in each case, applying the choice of law principles of the State of New York;
(iii) the validity, binding effect or enforceability of any provision of the Documents
specifying that provisions thereof may be modified or waived only in writing, to the extent that an oral agreement or an implied agreement by trade practice or course of conduct has been created that modifies any provision of such agreement;
(iv) the validity, binding effect or enforceability of any provision of the Documents
containing any purported waiver, release, variation, disclaimer, consent or other agreement of similar effect (all of the foregoing, collectively, a “Waiver”) by the Company under any provision of the Documents to the extent limited by provisions of
applicable law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge otherwise existing or occurring as a matter of law (including judicial decisions), except to the extent
that such a Waiver is effective under, and is not prohibited by or void or invalid under, provisions of applicable law (including judicial decisions);
(v) any provision of the Documents purporting to give any person or entity the power to
accelerate obligations without any notice to the obligor; and
(vi) any provision of the Documents which may be construed to be in the nature of a
penalty.
We express no opinion as to the validity or binding effect of any provision of any agreement (i) providing for payments thereunder in a currency other than currency of the United States of America to
the extent that a court of competent jurisdiction, under applicable law, will convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the
United States of America is contrary to applicable law, (ii) providing for governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency or (iii) concerning the
enforceability of the waiver of rights or defenses contained in the Indenture relating to waiver of stay, extension or usury laws.
The opinion expressed above is subject to the effect of, and we express no opinion herein as to, the application of state or foreign securities or Blue Sky laws or any rules or regulations thereunder
or the rules and regulations of the Financial Industry Regulatory Authority, Inc. or other self-regulatory agencies.
The opinion expressed herein is limited to the laws of the State of New York, as currently in effect, and no opinion is expressed with respect to any other laws or any effect that such other laws may
have on the opinion expressed herein. The opinion expressed herein is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. We undertake no responsibility to update or supplement
this letter after the effectiveness of the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the captions “Legal Opinions” in the Prospectus and “Validity of the
Notes” in any Prospectus Supplement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
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/s/ Fried, Frank, Harris, Shriver & Jacobson LLP
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FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
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