Exhibit 1.1
Execution Version
$1,000,000,000
Zimmer Holdings, Inc.
$500,000,000 4.625% Notes due 2019
$500,000,000 5.750% Notes due 2039
Underwriting Agreement
New York, New York
November 12, 2009
Banc of America Securities LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
As representatives of the several
underwriters named in Schedule I hereto
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Zimmer Holdings, Inc., a corporation organized under the laws of the State of Delaware (the
Company), proposes to sell to the several underwriters named in Schedule I hereto (the
Underwriters), for whom you (the Representatives) are acting as representatives, $500,000,000
aggregate principal amount of its 4.625% Notes due 2019 (the Notes due 2019) and $500,000,000
aggregate principal amount of its 5.750% Notes due 2039 (the Notes due 2039 and, together with
the Notes due 2019, the Securities), to be issued under an indenture (the Indenture) dated as
of November 17, 2009, between the Company and Wells Fargo Bank, National Association, as trustee
(the Trustee).
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms amend, amendment or supplement with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 20 hereof.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as
defined in Rule 405 on Form S-3 (File No. 333-163043), including a related Base Prospectus,
for registration under the Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the Execution Time,
became effective upon filing and no notice of objection of the Commission to the use of
such registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the Act against the Company or
related to the offering has been initiated or, to the Companys knowledge, threatened by
the Commission. The Company may have filed with the Commission, as part of an amendment to
the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has previously been furnished to you.
The Company will file with the Commission a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus supplement
shall contain all information required by the Act and the rules thereunder, and, except to
the extent the Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will
be included or made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading;
provided
,
however
, that the Company
makes no representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the Registration
Statement or the
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Final Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show, when taken together
as a whole with the Disclosure Package, does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf of any Underwriter
consists of the information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, and (iv) at the Execution Time (with such date being used as the determination date
for purposes of this clause (iv)), the Company was or is (as the case may be) a well-known
seasoned issuer as defined in Rule 405. The Company agrees to pay the fees required by
the Commission relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a
bona fide
offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information that conflicts with the
information contained in the Registration Statement, including any document incorporated
therein by reference and any prospectus supplement deemed to be a part thereof that has not
been superseded or modified. The foregoing sentence does not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such
in Section 8 hereof.
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(g) The documents incorporated by reference in the Disclosure Package and the Final
Prospectus, when they become effective or when they were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act or the
Exchange Act 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
Registration Statement and the Final Prospectus, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder then in effect and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
(h) Since the date as of which information is given in the Disclosure Package and the
Final Prospectus, there has not been (i) any material change in the capital stock (other
than changes pursuant to open market or accelerated repurchase plans or employee benefit
plans or changes resulting from the conversion or redemption of outstanding shares of
preferred stock) or long-term debt of the Company and its subsidiaries considered as a
whole, or (ii) any material adverse change, or any development known to the Company
involving a prospective material adverse change, in or affecting the business, business
prospects, financial condition or results of operations of the Company and its subsidiaries
considered as a whole (a Material Adverse Change), otherwise than as set forth or
contemplated in the Disclosure Package and the Final Prospectus.
(i) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with power and authority to own,
lease and operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not have a material adverse
effect on the business, business prospects, financial condition or results of operations of
the Company and its subsidiaries considered as a whole ( a Material Adverse Effect).
(j) Each of the Companys subsidiaries that qualifies as a significant subsidiary
under Section 1-02(w) of Regulation S-X (each a Significant Subsidiary and, collectively,
the Significant Subsidiaries) has been duly organized and is validly existing in good
standing under the laws of the jurisdiction of its organization, with power and authority
to own, lease and operate its properties and conduct its business as described in the
Disclosure Package and the Final Prospectus; each Significant Subsidiary is duly qualified
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise
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disclosed in the Disclosure
Package and the Final Prospectus, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and (except for shares necessary to qualify directors or to maintain any
minimum number of shareholders required by law) is owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(k) The Company has an outstanding capital stock as set forth in the Disclosure
Package and the Final Prospectus (except for subsequent issuances pursuant to employee
benefit plans or pursuant to the exercise of convertible securities or options and except
for repurchases in connection with open market or accelerated repurchase plans or
redemptions of shares of preferred stock), and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are fully paid and
non-assessable.
(l) This Agreement has been duly authorized, executed and delivered by the Company.
(m) The Securities have been duly authorized, and, when issued and delivered pursuant
to this Agreement, the Securities will have been duly executed, issued and delivered and
(assuming the due authentication thereof by the Trustee) will constitute valid and legally
binding obligations of the Company, will be entitled to the benefits provided by the
Indenture and will be enforceable in accordance with their terms except as the same may be
limited by bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting the enforcement of creditors rights and to general equity
principles.
(n) The Indenture has been duly authorized by the Company and at the Closing Date,
will have been duly executed and delivered by the Company and
will constitute a valid and legally binding agreement of the Company, enforceable in
accordance with its terms except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or affecting the
enforcement of creditors rights and to general equity principles; the Indenture has been
duly qualified under the Trust Indenture Act.
(o) The Indenture conforms, and the Securities will conform, in all material respects,
to the descriptions thereof contained in the Disclosure Package and the Final Prospectus.
(p) The statements in each of the Disclosure Package and the Final Prospectus under
the captions Description of the Notes and Description of Debt Securities We May Offer
in each case insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present and summarize, in all material
respects, the matters referred to therein.
(q) The issuance and sale of the Securities and the compliance by the Company with all
of the provisions of the Securities, the Indenture and this Agreement
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and the consummation
of the transactions herein and therein contemplated, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company or any of its Significant Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is subject, which
would reasonably be expected to have a Material Adverse Effect or affect the validity of
the Securities or the legal authority of the Company to comply with the Securities, the
Indenture or this Agreement; nor will such action result in any violation of the provisions
of the Restated Certificate of Incorporation, or the By-Laws of the Company; nor will such
action result in a violation of any statute or any order, rule or regulation of any court
or governmental agency or body in the United States having jurisdiction over the Company or
any of its Significant Subsidiaries or any of their properties.
(r) No consent, approval, authorization, order, registration or qualification of or
with any court or any such regulatory authority or other governmental body in the United
States having jurisdiction over the Company is required for the issuance and sale of the
Securities or the consummation by the Company of the other transactions contemplated by
this Agreement or the Indenture, except such consents, approvals, authorizations, orders,
registrations or qualifications as may be required by the securities or Blue Sky laws of
the various states, the Act, the Trust Indenture Act and the securities laws of any
jurisdiction outside the United States in which the Securities are offered.
(s) Except as set forth in the Disclosure Package and the Final Prospectus, no action,
suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or its or their property is
pending or, to the best knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii) could reasonably be
expected to have a Material Adverse Effect.
(t) The accountants who have certified certain financial statements of the Company and
its consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Disclosure Package and the
Final Prospectus, are independent registered public accountants with respect to the Company
within the meaning of the Act and the applicable published rules and regulations
thereunder.
(u) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus
and the Registration Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form in all material respects with the applicable
accounting requirements of the Act and have been prepared in conformity with
6
generally
accepted accounting principles in the United States applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The summary financial
data set forth under the caption Prospectus Supplement Summary Summary Financial
Information in the Preliminary Prospectus and the Final Prospectus fairly present, on the
basis stated in the Preliminary Prospectus and the Final Prospectus, the information
included therein.
(v) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Disclosure
Package and the Final Prospectus, will not be an investment company as defined in the
Investment Company Act of 1940, as amended.
(w) The Company has filed all tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto)) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(x) No labor problem or dispute with the employees of the Company or any of its
subsidiaries that could have a Material Adverse Effect exists or is threatened or imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees
of any of its or its subsidiaries principal suppliers, contractors or customers that could
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(y) The Company and each of its subsidiaries are insured by responsible and reputable
insurers against such losses and risks and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with respect thereto)
as are prudent and customary in the case of entities of established reputations engaged in
the same or similar businesses in which they are engaged and similarly situated;
provided
that such insurance is available in the relevant market; all policies of insurance insuring
the Company or any of its subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and its subsidiaries are
in compliance with the terms of such policies and instruments in all material respects; and
there are no material claims by the Company or any of its subsidiaries under any such
policy or instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause; neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect, except
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as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
(z) The Company and its subsidiaries possess all material licenses, certificates,
permits and other authorizations issued by all applicable authorities necessary to conduct
their respective businesses, and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a Material Adverse Affect, except as
set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive
of any supplement thereto).
(aa) The Company and its subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (Environmental Laws), (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or potential liability
under any environmental law, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto). Except as set forth in the Disclosure Package and the Final
Prospectus, neither the Company nor any of the subsidiaries has been named as a
potentially responsible party under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(bb) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(cc) None of the following events has occurred or exists: (i) a failure to fulfill
the obligations, if any, under the minimum funding standards of Section 302 of the United
States Employee Retirement Income Security Act of 1974, as amended (ERISA), and the
regulations and published interpretations thereunder with respect to a Plan, determined
without regard to any waiver of such obligations or extension of any amortization period;
(ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of
Labor, the Pension Benefit Guaranty Corporation or any other federal or state governmental
agency or any foreign regulatory agency with respect to the
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employment or compensation of
employees by any of the Company or any of its subsidiaries that could have a Material
Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law
or applicable qualification standards, with respect to the employment or compensation of
employees by the Company or any of its subsidiaries that could have a Material Adverse
Effect. Except as set forth in the Disclosure Package and the Final Prospectus, none of
the following events has occurred or is reasonably likely to occur: (i) a material
increase in the aggregate amount of contributions required to be made to all Plans in the
current fiscal year of the Company and its subsidiaries compared to the amount of such
contributions made in the most recently completed fiscal year of the Company and its
subsidiaries; (ii) a material increase in the accumulated post-retirement benefit
obligations (within the meaning of Statement of Financial Accounting Standards 106) of the
Company and its subsidiaries compared to the amount of such obligations in the most
recently completed fiscal year of the Company and its
subsidiaries; (iii) any event or condition giving rise to a liability under Title IV
of ERISA that could have a Material Adverse Effect; or (iv) the filing of a claim by one or
more employees or former employees of the Company or any of its subsidiaries related to
their employment that could have a Material Adverse Effect. For purposes of this
paragraph, the term Plan means a plan (within the meaning of Section 3(3) of ERISA)
subject to Title IV of ERISA with respect to which the Company or any of its subsidiaries
may have any liability.
(dd) The Company and its subsidiaries own, possess, license or have other rights to
use, on reasonable terms, all material patents, patent applications, trade and service
marks, trade and service mark registrations, trade names, copyrights, licenses, inventions,
trade secrets, technology, know-how and other intellectual property (collectively, the
Intellectual Property) necessary for the conduct of the Companys business as now
conducted or as proposed in the Final Prospectus to be conducted. Except as set forth in
the Preliminary Prospectus and the Final Prospectus, to our knowledge, (a) there are no
material rights of third parties to any such Intellectual Property; (b) there is no
material infringement by third parties of any such Intellectual Property; (c) there is no
pending or threatened material action, suit, proceeding or claim by others challenging the
Companys rights in or to any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such material claim; (d) there is no
pending or threatened material action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such material claim; (e) there is no
pending or threatened material action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of others, and the Company is unaware of any other fact which
would form a reasonable basis for any such material claim; (f) there is no U.S. patent or
published U.S. patent application which contains claims which may have a Material Adverse
Effect and that dominate or may dominate any Intellectual Property described in the
Disclosure Package and the Final Prospectus as being owned by or licensed to the Company or
that materially interferes with the issued or pending claims of any such Intellectual
Property; and (g) there is no material prior art of which the Company is aware that may
render any U.S. patent held by the Company
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invalid or any U.S. patent application held by
the Company unpatentable which has not been disclosed to the U.S. Patent and Trademark
Office.
(ee) There is and has been no failure on the part of the Company and any of the
Companys directors or officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the Sarbanes-Oxley Act), including Section 402 relating to loans and Sections
302 and 906 relating to certifications.
(ff) The Company maintains a system of internal accounting control over financial
reporting with respect to itself and its consolidated subsidiaries sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with managements
general or specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting
principles in the United States and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with managements general or specific authorization;
and (iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences. The
Companys internal control over financial reporting is effective as of December 31, 2008
and the Company is not aware of any material weakness in its internal control over
financial reporting.
(gg) The Company maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures
are effective.
(hh) Except for the circumstances described in the Disclosure Package and the Final
Prospectus and the consequences thereof, neither the Company nor any of its subsidiaries
nor, to the knowledge of the Companys executive officers, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries, is aware of or has taken
any action, directly or indirectly, that would result in a material violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the FCPA), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
foreign official (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its
affiliates have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to ensure compliance with the FCPA.
(ii) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
and the money laundering statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the Money Laundering Laws)
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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 best knowledge of the Company, threatened.
(jj) 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 is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (OFAC); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(kk) With respect to the stock options (the Stock Options) granted pursuant to the
stock-based compensation plans of the Company and its subsidiaries (the Company Stock
Plans), (i) each Stock Option intended to qualify as an incentive stock option under
Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was duly authorized
no later than the date on which the grant of such Stock Option was by its terms to be
effective (the Grant Date) by all necessary corporate action, including, as applicable,
approval by the board of directors of the Company (or a duly constituted and authorized
committee thereof) and any required stockholder approval by the necessary number of votes
or written consents, and the award agreement governing such grant (if any) was duly
executed and delivered by each party thereto, (iii) each such grant was made in accordance
with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws
and regulatory rules or requirements, including the rules of the New York Stock Exchange
and any other exchange on which Company securities are traded, (iv) the per share exercise
price of each Stock Option was equal to the fair market value of a share of common stock on
the applicable Grant Date and (v) each such grant was properly accounted for in accordance
with GAAP in the financial statements (including the related notes) of the Company and
disclosed in the Companys filings with the Commission in accordance with the Exchange Act
and all other applicable laws. The Company has not knowingly granted, and there is no and
has been no policy or practice of the Company of granting, Stock Options prior to, or
otherwise coordinate the grant of Stock Options with, the release or other public
announcement of material information regarding the Company or its subsidiaries or their
results of operations or prospects.
(ll) Except as disclosed in the Registration Statement, the Disclosure Package and the
Final Prospectus, the Company (i) does not have any material lending or other relationship
with any bank or lending affiliate of any of the Underwriters and (ii) does not intend to
use any of the proceeds from the sale of the Securities hereunder to repay any outstanding
debt owed to any affiliate of any of the Underwriters.
(mm) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
11
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at 99.276% of
the principal amount thereof with respect to the Notes due 2019 and 98.951% of the principal amount
thereof with respect to the Notes due 2039, in each case the principal amount of the Securities set
forth opposite such Underwriters name in Schedule I hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made at
9:00 a.m., New York City time, on November 17, 2009 or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall designate, which
date and time may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the Securities being
herein called the Closing Date). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct. Certificates for the Securities shall be registered in
such names and in such denominations as the Representatives may request not less than two Business
Days in advance of the Closing Date.
4.
Offering by Underwriters
. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements
. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form approved
by
the Representatives with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to
termination of the offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for
12
any additional information,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration Statement
and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible
the withdrawal of such stop order or relief from such occurrence or objection, including,
if necessary, by filing an amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
(b) It will prepare a final term sheet, containing solely a description of final terms
of the Securities and the offering thereof, in the form approved by you and attached as
Schedule III hereto and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make
the statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were
made at such time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission
or effect such compliance, (iii) use its best efforts to have any amendment to the
Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply
any supplemented Final Prospectus to you in such quantities as you may reasonably request.
13
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule
158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto)
and to each other Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives
may reasonably request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees
with the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a free writing prospectus (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433, other than a free
writing
prospectus containing the information contained in the final term sheet prepared and
filed pursuant to Section 5(b) hereto; provided that the prior written consent of the
Company shall be deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule II hereto and any electronic road show. Any such free writing
prospectus consented to by the Representatives or the Company is hereinafter referred to as
a Permitted Free Writing Prospectus. The Company agrees that (x) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied and will comply, as the case may be, with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person
14
in
privity with the Company or any affiliate of the Company), directly or indirectly,
including the filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act, any debt securities issued or guaranteed by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction, until the Business Day
following the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to
any of them, as may, in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and delivered
in connection with the offering of the Securities; (v) any registration or qualification of
the Securities for offer and sale under the securities or blue sky laws of the several
states (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vi) any filings required to
be made with FINRA (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (vii) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (viii) the fees and expenses of the Companys
accountants and the fees and expenses of counsel (including local and special counsel) for
the Company; (ix) the fees and expenses of the Trustee, including the reasonable fees and
disbursements of counsel for the Trustee in connection with the Indenture and the Notes,
(x) any fees payable in connection with the rating of the Notes with the ratings agencies,
and (xi) all other costs and expenses incident to the performance by the Company of its
obligations hereunder.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant
15
to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner
and within the time period required by Rule 424(b); the final term sheet contemplated by
Section 5(b) hereto, and any other material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Baker & Daniels LLP, to have furnished
to the Representatives their opinion dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority to own, lease and operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus;
(ii) the Company has an outstanding capitalization as set forth in the
Disclosure Package and the Final Prospectus (except for subsequent issuances, if
any, pursuant to employee benefit plans or pursuant to the
exercise of convertible securities or options and except for repurchases in
connection with open market repurchase plans or redemptions of shares of preferred
stock);
(iii) this Agreement has been duly authorized, executed and delivered by the
Company;
(iv) the Securities have been duly authorized, executed and delivered by the
Company and, assuming the due authentication thereof by the Trustee, constitute
valid and legally binding obligations of the Company, entitled to the benefits
provided by the Indenture and enforceable in accordance with their terms except as
the same may be limited by bankruptcy, insolvency, reorganization or other laws of
general applicability relating to or affecting the enforcement of creditors rights
and to general equity principles; the Securities conform in all material respects
to the descriptions thereof contained in the Disclosure Package and the Final
Prospectus;
(v) the Indenture has been duly authorized, executed and delivered by the
Company and (assuming the due authorization, execution and delivery thereof by the
Trustee) constitutes a valid and legally binding agreement of the Company,
enforceable in accordance with its terms except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws of general applicability
relating to or affecting the enforcement of creditors rights and to general equity
principles and except further as enforcement thereof may be limited by
16
requirements
that a claim with respect to any debt securities that are payable other than in
U.S. dollars (or a foreign currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law, governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Indenture has been duly qualified under the
Trust Indenture Act; the Indenture conforms in all material respects to the
descriptions thereof contained in the Disclosure Package and the Final Prospectus;
(vi) the statements in each of the Disclosure Package and the Final Prospectus
under the captions Description of the Notes and Description of Debt Securities
We May Offer in each case insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly present and
summarize, in all material respects, the matters referred to therein;
(vii) neither the execution and delivery of the Indenture, the issue and sale
of the Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result in
a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to (A) the charter or by-laws of the Company or (B) any
applicable federal, Delaware or Indiana statute, law, rule, regulation, or, to such
counsels knowledge, any judgment, order or decree applicable to the Company or its
subsidiaries of any federal, Delaware or Indiana court, regulatory body,
administrative agency, governmental body or other authority having jurisdiction
over the Company or its subsidiaries or any of its or their properties, which
conflict, breach, violation, lien, charge or encumbrance, in the case of clause
(B), would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or affect the validity of the Securities or the legal
authority of the Company to comply with the Securities, the Indenture or this
Agreement;
(viii) no consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority or other
governmental body in the United States having jurisdiction over the Company is
required for the issuance and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders, registrations or
qualifications as may be required by the securities or Blue Sky laws of the various
states, the Act, the Trust Indenture Act and the securities laws of any
jurisdiction outside the United States in which the Securities are offered;
(ix) the Company is not, and upon the issuance and sale of the Securities and
the application of the net proceeds therefrom as described in the Disclosure
Package and the Final Prospectus will not be, an investment company or an entity
controlled by an investment company as such terms are defined in the Investment
Company Act of 1940, as amended;
17
(x) the Registration Statement has become effective under the Act; any required
filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued, no proceedings for that purpose have been
instituted or threatened;
(xi) the Registration Statement has become effective under the Act; any
required filing of the Base Prospectus, any Preliminary Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no proceedings for
that purpose have been threatened; and
(xii) the Registration Statement and the Final Prospectus (other than the
documents incorporated by reference therein, the financial statements and other
financial and statistical information contained therein and the Trustees Statement
of Eligibility on Form T-1, as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements of the Act and
the Trust Indenture Act and the respective rules thereunder.
Such counsel shall also state that that nothing has come to their attention
that caused them to believe that (i) the Registration Statement, on the Effective
Date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Disclosure Package, as amended or supplemented at
the Execution 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 the circumstances under which they were made, not misleading or (iii) the
Final Prospectus, as of its date and on the Closing Date, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to which such
counsel need express no belief).
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of New York, the
corporate law of the State of Delaware or the Federal laws of the United States, to
the extent they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) shall also
include any supplements thereto at the Closing Date.
18
(c) The Company shall have requested and caused its General Counsel, Chad F. Phipps, to
have furnished to the Representatives his opinion dated the Closing Date and addressed to
the Representatives to the effect that:
(i) the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good standing would
not have a Material Adverse Effect;
(ii) each Significant Subsidiary has been duly organized and is validly
existing in good standing under the laws of the jurisdiction of its organization,
with power and authority to own, lease and operate its properties and conduct its
business as described in the Disclosure Package and the Final Prospectus; each
Significant Subsidiary is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result in a
Material Adverse Effect;
(iii) except as otherwise disclosed in the Disclosure Package and the Final
Prospectus, all of the issued and outstanding capital stock or other equity interest
of each Significant Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and (except for shares necessary to qualify directors or to
maintain any minimum number of shareholders required by law) is owned by the
Company, directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(iv) neither the execution and delivery of the Indenture, the issue and sale of
the Securities, nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to (A) the charter or
by-laws of any Significant Subsidiary or (B) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other financial
agreement, obligation, condition, covenant or instrument to which the Company or its
subsidiaries is a party or bound or to which its or their property is subject, which
conflict, breach, violation, lien, charge or encumbrance, in the case of clause (B),
would, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or affect the validity of the Securities or the legal authority of
the Company to comply with the Securities, the Indenture or this Agreement;
(v) there is no pending or, to the knowledge of such counsel, threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries or its or
their property, of a character required to be disclosed in the
19
Registration Statement which is not adequately disclosed in any Preliminary
Prospectus and the Final Prospectus, and, to the knowledge of such counsel, there is
no franchise, contract or other document of a character required to be described in
the Registration Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required;
(vi) the documents incorporated by reference in the Disclosure Package and the
Final Prospectus, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act 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
(vii) all descriptions in the Registration Statement, the Disclosure Package
and the Final Prospectus of contracts and other documents to which the Company or
any of its subsidiaries is a party are accurate in all material respects; and to the
best of such counsels knowledge, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement, the Disclosure Package or the Final
Prospectus other than those described or referred to therein.
(d) The Representatives shall have received from Mayer Brown LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may reasonably require,
and the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the President and Chief Executive Officer and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the Disclosure Package,
the Final Prospectus and any supplements or amendments thereto, as well as each electronic
road show used in connection with the offering of the Securities, and this Agreement and
that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings
20
for that purpose have been instituted or, to the Companys knowledge,
threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, business
prospects, financial condition or results of operations of the Company and its
subsidiaries considered as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendments or supplements thereto
after the date hereof).
(f) At the date hereof and at the Closing Date, the Company shall have requested and
caused PricewaterhouseCoopers LLP to furnish to the Underwriters letters, dated respectively
as of the date hereof and as of the Closing Date, in form and substance satisfactory to the
Underwriters of the type described in PCAOB Statement on Auditing Standards No. 72/AU 634.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in paragraph (f) of
this Section 6 or (ii) any change, or any development involving a prospective change, in or
affecting the business, business prospects, financial condition or results of operations of
the Company and its subsidiaries considered as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Companys debt securities by any nationally recognized statistical
rating organization (as defined for purposes of Rule 436(g) under the Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned
21
above or elsewhere in this Agreement shall not be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Mayer Brown LLP, counsel for the Underwriters, at 71 South Wacker Drive, Chicago, Illinois 60606,
on the Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through the Representatives
on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
. (a) The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the registration statement for the registration of the Securities as originally filed or
in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus supplement relating to the Securities, the Final Prospectus, or any
Issuer Free Writing Prospectus or the information contained in the final term sheet required
to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
22
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that (i) in the last paragraph of the cover page regarding
delivery of the Securities, (ii) the list of Underwriters and their respective participation
in the sale of the Securities, (iii) the sentences related to concessions and reallowances
and (iv) the paragraph related to stabilization, syndicate covering transactions and penalty
bids in any Preliminary Prospectus and the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying partys choice
at the indemnifying partys expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below);
provided
,
however
, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
partys election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of
23
any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such claim or
action) unless (i) such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is unavailable to or insufficient to hold harmless an indemnified party for any reason, the
Company and the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively Losses) to which the Company and
one or more of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Prospectus. Relative
fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter
in connection with the Securities underwritten by it and distributed to the public. The
Company and the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
24
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement and the Final Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment (i) trading in the Companys
Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there shall have occurred
any outbreak or escalation of hostilities, declaration by the United States of a national emergency
or war, or other calamity or crisis the effect of which on financial markets is such as to make it,
in the sole judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final
Prospectus (exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to (i) Banc of
America Securities LLC, High Grade Debt Capital Markets Transaction Management/Legal (fax no.:
(212) 901-7881) and confirmed to High Grade Debt Capital
25
Transaction Management/Legal, One Bryant Park, New York, NY 10036, (ii) Citigroup Global
Markets Inc., General Counsel (fax no.: (212) 816-7912) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 388 Greenwich Street, New York, New York 10013, Attention:
General Counsel and (iii) J.P. Morgan Securities Inc., 270 Park Avenue, New York, NY 10017,
Facsimile: (212) 834-6081 Attn: Investment Grade Syndicate Desk, or, if sent to the Company, will
be mailed, delivered or telefaxed to Zimmer Holdings, Inc., Chad F. Phipps, Senior Vice President,
General Counsel and Secretary, (fax no.: (574) 372-4302) and confirmed to it at 345 East Main
Street, Warsaw, Indiana, 46580, attention of the Legal Department.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
No Fiduciary duty
. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Companys engagement of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
15.
Integration
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17.
Waiver of Jury Trial
. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
26
Act shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
Base Prospectus shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
Commission shall mean the Securities and Exchange Commission.
Disclosure Package shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule II hereto, (iv) the final term sheet prepared
and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
Effective Date shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Execution Time shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Final Prospectus shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Free Writing Prospectus shall mean a free writing prospectus, as defined in Rule 405.
Issuer Free Writing Prospectus shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
Registration Statement shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto
27
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended.
Rule 158, Rule 163, Rule 164, Rule 172, Rule 405, Rule 415, Rule 424,
Rule 430B and Rule 433 refer to such rules under the Act.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
Well-Known Seasoned Issuer shall mean a well-known seasoned issuer, as defined in
Rule 405.
28
If the foregoing is in accordance with your understanding of our agreement, please sign
and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the several Underwriters.
|
|
|
|
|
|
Very truly yours,
ZIMMER HOLDINGS, INC.
|
|
|
By:
|
/s/
James T. Crines
|
|
|
|
Name:
|
James T. Crines
|
|
|
|
Title:
|
Executive Vice President,
Finance and Chief
Financial Officer
|
|
|
The foregoing Agreement is
hereby confirmed and accepted
as of the date first set forth above.
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
J.P. MORGAN SECURITIES INC.
|
|
|
|
|
|
By: BANC OF AMERICA SECURITIES LLC
|
|
|
By:
|
/s/
Douglas A. Muller
|
|
|
|
Name:
|
Douglas A. Muller
|
|
|
|
Title:
|
Managing Director
|
|
|
|
By: CITIGROUP GLOBAL MARKETS INC.
|
|
|
By:
|
/s/
Brian D. Bednarski
|
|
|
|
Name:
|
Brian D. Bednarski
|
|
|
|
Title:
|
Managing Director
|
|
|
|
By: J.P. MORGAN SECURITIES INC.
|
|
|
By:
|
/s/ Robert Bottamedi
|
|
|
|
Name:
|
Robert Bottamedi
|
|
|
|
Title:
|
Vice President
|
|
|
For themselves and the other several
Underwriters named in Schedule I hereto.
29
SCHEDULE I
|
|
|
|
|
|
|
|
|
|
|
Principal Amount
|
|
Principal Amount
|
|
|
of the Notes due
|
|
of the Notes due
|
|
|
2019 to be
|
|
2039 to be
|
Underwriters
|
|
Purchased
|
|
Purchased
|
Banc of America
Securities LLC
|
|
$
|
116,250,000
|
|
|
$
|
116,250,000
|
|
Citigroup Global
Markets Inc.
|
|
|
116,250,000
|
|
|
|
116,250,000
|
|
J.P. Morgan
Securities Inc.
|
|
|
116,250,000
|
|
|
|
116,250,000
|
|
BNP Paribas
Securities Corp.
|
|
|
32,500,000
|
|
|
|
32,500,000
|
|
Credit Suisse
Securities (USA) LLC
|
|
|
32,500,000
|
|
|
|
32,500,000
|
|
RBS Securities Inc.
|
|
|
32,500,000
|
|
|
|
32,500,000
|
|
Mitsubishi UFJ
Securities (USA),
Inc.
|
|
|
14,950,000
|
|
|
|
14,950,000
|
|
Deutsche Bank
Securities Inc.
|
|
|
13,800,000
|
|
|
|
13,800,000
|
|
Daiwa Securities
America Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
Fifth Third
Securities, Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
HSBC Securities (USA)
Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
KeyBanc Capital
Markets Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
Mizuho Securities USA
Inc.
|
|
|
5,000,000
|
|
|
|
5,000,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
|
|
|
|
|
|
|
|
|
S-I-1
Exhibit 1.1
SCHEDULE II
Schedule of Free Writing Prospectuses included in the Disclosure Package
None.
S-II-1
Exhibit 1.1
SCHEDULE III
Filed Pursuant to Rule 433
Registration No. 333-163043
November 12, 2009
Zimmer Holdings, Inc.
$500,000,000 4.625% Notes due 2019
$500,000,000 5.750% Notes due 2039
Pricing Term Sheet
$500,000,000 4.625% Notes due 2019
|
|
|
Issuer:
|
|
Zimmer Holdings, Inc.
|
|
|
|
Security:
|
|
4.625% Notes due 2019
|
|
|
|
Size:
|
|
$500,000,000
|
|
|
|
Maturity Date:
|
|
November 30, 2019
|
|
|
|
Coupon:
|
|
4.625%
|
|
|
|
Interest Payment Rates
|
|
4.625%
|
|
|
|
Interest Payment Dates:
|
|
Each November 30 and May 30, commencing May 30, 2010
|
|
|
|
Price to Public:
|
|
99.926%
|
|
|
|
Benchmark Treasury:
|
|
3.625% due August 15, 2019
|
|
|
|
Benchmark Treasury Yield:
|
|
3.454%
|
|
|
|
Spread to Benchmark Treasury:
|
|
T+118 bps
|
|
|
|
Yield:
|
|
4.634%
|
|
|
|
Make-Whole Call:
|
|
T+20 bps
|
|
|
|
Expected Settlement Date:
|
|
November 17, 2009
|
|
|
|
CUSIP:
|
|
98956PAA0
|
|
|
|
Ratings:
|
|
Baa1 (Moodys) / A- (S&P)
|
|
|
|
Joint Book-Running Managers:
|
|
Banc of America Securities LLC
|
|
|
Citigroup Global Markets Inc.
|
|
|
J.P. Morgan Securities Inc.
|
|
|
BNP Paribas Securities Corp.
|
|
|
Credit Suisse Securities (USA) LLC
|
|
|
RBS Securities Inc.
|
|
|
|
Co-Managers:
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
Deutsche Bank Securities Inc.
|
|
|
KeyBanc Capital Markets Inc.
|
|
|
Daiwa Securities America Inc.
|
|
|
Mizuho Securities USA Inc.
|
|
|
Fifth Third Securities, Inc.
|
|
|
HSBC Securities (USA) Inc.
|
S-III-1
$500,000,000 5.750% Notes due 2039
|
|
|
Issuer:
|
|
Zimmer Holdings, Inc.
|
|
|
|
Security:
|
|
5.750% Notes due 2039
|
|
|
|
Size:
|
|
$500,000,000
|
|
|
|
Maturity Date:
|
|
November 30, 2039
|
|
|
|
Coupon:
|
|
5.750%
|
|
|
|
Interest Payment Rates
|
|
5.750%
|
|
|
|
Interest Payment Dates:
|
|
Each November 30 and May 30, commencing May 30, 2010
|
|
|
|
Price to Public:
|
|
99.826%
|
|
|
|
Benchmark Treasury:
|
|
4.250% due May 15, 2039
|
|
|
|
Benchmark Treasury Yield:
|
|
4.412%
|
|
|
|
Spread to Benchmark Treasury:
|
|
T+135 bps
|
|
|
|
Yield:
|
|
5.762%
|
|
|
|
Make-Whole Call:
|
|
T+25 bps
|
|
|
|
Expected Settlement Date:
|
|
November 17, 2009
|
|
|
|
CUSIP:
|
|
98956P AB8
|
|
|
|
Ratings:
|
|
Baa1 (Moodys) / A- (S&P)
|
|
|
|
Joint Book-Running Managers:
|
|
Banc of America Securities LLC
|
|
|
Citigroup Global Markets Inc.
|
|
|
J.P. Morgan Securities Inc.
|
|
|
BNP Paribas Securities Corp.
|
|
|
Credit Suisse Securities (USA) LLC
|
|
|
RBS Securities Inc.
|
|
|
|
Co-Managers:
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
Deutsche Bank Securities Inc.
|
|
|
KeyBanc Capital Markets Inc.
|
|
|
Daiwa Securities America Inc.
|
|
|
Mizuho Securities USA Inc.
|
|
|
Fifth Third Securities, Inc.
|
|
|
HSBC Securities (USA) Inc.
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling or e-mailing Banc of America Securities LLC
at 1-800-294-1322 or dg.prospectus_distribution@bofasecurities.com, by calling Citigroup Global
Markets Inc. toll free at 1-877-858-5407 or by calling J.P. Morgan Securities Inc. at (212)
834-4533.
S-III-2
EXHIBIT 4.2
ZIMMER HOLDINGS, INC.
$500,000,000 4.625% Notes due 2019
$500,000,000 5.750% Notes due 2039
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 17, 2009
to
Indenture dated as of November 17, 2009
WELLS FARGO BANK, NATIONAL ASSOCIATION
Trustee
CONTENTS
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Clause
|
|
Page
|
|
|
|
ARTICLE
I DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
1
|
|
|
|
SECTION 1.01. Application of this First Supplemental Indenture
|
|
1
|
SECTION 1.02. Definitions
|
|
1
|
SECTION 1.03. Incorporation by Reference of Trust Indenture Act
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ARTICLE II CREATION, FORMS, TERMS AND CONDITIONS OF THE SECURITIES
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SECTION 2.01. Creation of the Notes
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SECTION 2.02. Form of the Notes
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SECTION 2.03. Terms and Conditions of the 2019 Notes
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SECTION 2.04. Terms and Conditions of the 2039 Notes
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SECTION 2.05. Ranking
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SECTION 2.06. Sinking Fund
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ARTICLE
III REDEMPTION
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SECTION 3.01. Optional Redemption
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ARTICLE IV CHANGE OF CONTROL
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SECTION 4.01. Repurchase at the Option of Holders Upon a Change of Control
Repurchase Event
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ARTICLE V TRANSFER AND EXCHANGE
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SECTION 5.01. Transfer and Exchange
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ARTICLE VI TRUSTEE
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SECTION 6.01. Corporate Trust Office
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SECTION 6.02. Recitals of Fact
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SECTION 6.03. Successor
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ARTICLE VII MISCELLANEOUS PROVISIONS
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SECTION 7.01. Ratification of Original Indenture
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SECTION 7.02. Effect of Headings
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SECTION 7.03. Successors and Assigns
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SECTION 7.04. Separability Clause
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SECTION 7.05. Governing Law
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SECTION 7.06. Counterparts
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EXHIBITS
EXHIBIT A Form of Global 2019 Note
EXHIBIT B Form of Global 2039 Note
FIRST SUPPLEMENTAL INDENTURE
, dated as of November 17, 2009 (this First Supplemental
Indenture), between ZIMMER HOLDINGS, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the Company or the Issuer), having its principal
offices at 345 East Main Street, Warsaw, Indiana, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association, as trustee (the Trustee).
RECITALS
WHEREAS
, the Issuer executed and delivered to the Trustee an Indenture, dated as of November
17, 2009 (the Original Indenture), providing for the issuance by the Issuer from time to time of
debt securities evidencing unsecured and unsubordinated indebtedness of the Issuer to be issued in
one or more series;
WHEREAS
, the Original Indenture provides, among other things, that by means of a supplemental
indenture, the Issuer and the Trustee may, without the consent of Holders, create one or more
series of the Issuers debt securities and establish the form and terms and conditions thereof;
WHEREAS
, the Issuer intends by this First Supplemental Indenture to create and provide for the
issuance of new series of debt securities to be designated as the 4.625% Notes due 2019 (the
2019 Notes) and the 5.750% Notes due 2039 (the 2039 Notes and, together with the 2019 Notes,
the Notes);
WHEREAS
, the Board of Directors of the Issuer has authorized the execution and delivery of the
First Supplemental Indenture, the issuance of the Notes and the forms, terms and conditions of the
Notes pursuant to Sections 201, 301 and 901 of the Original Indenture; and
WHEREAS
, all acts and things necessary to make the Notes, when the Notes have been executed by
the Issuer, authenticated by the Trustee, issued upon the terms and subject to the conditions set
forth hereinafter and in the Original Indenture and delivered as provided in the Indenture against
payment therefor, valid, binding and legal obligations of the Issuer according to their terms, and
all actions required to be taken by the Issuer under the Original Indenture to make this First
Supplemental Indenture a valid, binding and legal agreement of the Issuer, have been done;
NOW, THEREFORE
, in consideration of the premises and for other good and valuable
consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01.
Application of this First Supplemental Indenture
. Notwithstanding any
other provision of this First Supplemental Indenture, the provisions of this First Supplemental
Indenture, including the covenants set forth herein, are expressly and solely for the benefit of
the Notes. The Notes constitute two separate series of notes as provided in Section 301 of the
Original Indenture.
SECTION 1.02.
Definitions
. Capitalized terms used in this First Supplemental
Indenture and not otherwise defined herein shall have the meanings ascribed to them in the Original
Indenture. In addition, the following terms shall have the following meanings to be equally
applicable to both the singular and the plural forms of the terms defined:
2019 Interest Payment Date
has the meaning set forth in Section 2.03(c).
2039 Interest Payment Date
has the meaning set forth in Section 2.04(c).
2019 Maturity Date
has the meaning set forth in Section 2.03(b).
2039 Maturity Date
has the meaning set forth in Section 2.04(b).
2019 Notes
has the meaning set forth in the Recitals hereto.
2039 Notes
has the meaning set forth in the Recitals hereto.
2019 Regular Record Date
has the meaning set forth in Section 2.03(c).
2039 Regular Record Date
has the meaning set forth in Section 2.04(c).
Below Investment Grade Rating Event
means the Notes are rated below Investment Grade by each
of the Rating Agencies on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following public notice of the
occurrence of a Change of Control (which period shall be extended so long as the rating of the
Notes is under publicly announced consideration for possible downgrade by any of the Rating
Agencies);
provided
that a Below Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes
of the definition of Change of Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise apply do not announce or publicly
confirm or inform the Issuer that the reduction was the result, in whole or in part, of any event
or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of
Control (whether or not the applicable Change of Control shall have occurred at the time of the
Below Investment Grade Rating Event).
Business Day
means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which the Trustee or banking institutions in The City of New York are authorized or
required by law or regulation to close.
Change of Control
means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Issuer and its subsidiaries taken as a
whole to any person (as that term is used in Section 13(d)(3) of the Exchange Act), other
than the Issuer or one of its subsidiaries;
(2) the adoption of a plan relating to the Issuers liquidation or dissolution;
(3) the first day on which a majority of the members of the Issuers Board of Directors
are not Continuing Directors; or
(4) the consummation of any transaction or series of related transactions (including,
without limitation, any merger or consolidation) the result of which is that any person
(as that term is used in Section 13(d)(3) of the Exchange Act), other than the Issuer or one
or more of its
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wholly-owned subsidiaries becomes the beneficial owner, directly or indirectly, of more
than 50% of the then outstanding number of shares of the Issuers Voting Stock.
Change of Control Repurchase Event
means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
Comparable Treasury Issue
means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the series of Notes to be
redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes.
Comparable Treasury Price
means, with respect to any Redemption Date, (1) the average of
four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, (2) if the Issuer can only obtain less than four
such Reference Treasury Dealer Quotations, the average of all such quotations or (3) if the Issuer
can only obtain one Reference Treasury Dealer Quotation, such quotation.
Continuing Directors
means, as of any date of determination, any member of the Issuers
Board of Directors who (1) was a member of such Board of Directors on the date of the issuance of
the Notes; or (2) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination or election (either by a specific vote or by approval of the Issuers
proxy statement in which such member was named as a nominee for election as a director).
Dollar
and
$
means the lawful currency of the United States of America.
DTC
means The Depository Trust Company, its nominees and their successors and assigns.
Exchange Act
means the Securities Exchange Act of 1934, as amended from time to time.
Global Note
means a single permanent fully-registered global note in book-entry form,
without coupons, substantially in the form of Exhibit A and Exhibit B attached hereto.
Indenture
means the Original Indenture as supplemented by this First Supplemental Indenture.
Investment Grade
means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys) and a rating of BBB- or better by S&P (or its equivalent
under any successor rating categories of S&P) or the equivalent investment grade credit rating from
any additional Rating Agency or Rating Agencies selected by the Issuer.
Issuer
has the meaning set forth in the Recitals hereto.
Moodys
means Moodys Investors Service Inc.
Notes
has the meaning set forth in the Recitals hereto.
Original Indenture
has the meaning set forth in the Recitals hereto.
Quotation Agent
means the Reference Treasury Dealer appointed by the Issuer.
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Rating Agency
means (1) each of Moodys and S&P; and (2) if any of Moodys or S&P ceases to
rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the
Issuers control, a nationally recognized statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer as a replacement agency for
Moodys or S&P, as the case may be.
Redemption Date
means the Business Day on which Notes are redeemed by the Issuer pursuant to
Section 3.01 hereof.
Redemption Price
has the meaning set forth in Section 3.01(a).
Reference Treasury Dealer
means (1) each of Banc of America Securities LLC, Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc. (or their respective affiliates that are Primary
Treasury Dealers) and their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City (a Primary Treasury
Dealer), the Issuer will substitute therefor another Primary Treasury Dealer, and (2) any other
Primary Treasury Dealer selected by the Issuer.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Issuer, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m., New York City time,
on the third Business Day preceding such Redemption Date.
Registered Securities
means any Securities which are registered in the Security Register.
S&P
means Standard & Poors Ratings Services, a division of McGraw-Hill, Inc.
Treasury Rate
means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
Trustee
has the meaning set forth in the Recitals hereto.
Voting Stock
means, with respect to any Person, capital stock of any class or kind the
holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or Persons performing similar functions) of such Person, even if the right so to vote
has been suspended by the happening of such a contingency.
SECTION 1.03.
Incorporation by Reference of Trust Indenture Act
. The Indenture is
subject to the mandatory provisions of the Trust Indenture Act, which are incorporated by reference
in and made a part of the Indenture. The following Trust Indenture Act terms have the following
meanings:
indenture securities means the Notes.
indenture security holder means a Holder.
indenture to be qualified means this First Supplemental Indenture.
indenture trustee or institutional trustee means the Trustee.
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obligor on the indenture securities means the Issuer and any other obligor on the indenture
securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Securities
and Exchange Commission rule have the meanings assigned to them by such definitions.
ARTICLE II
CREATION, FORMS,
TERMS AND CONDITIONS OF THE SECURITIES
SECTION 2.01.
Creation of the Notes
. In accordance with Section 301 of the Original
Indenture, the Issuer hereby creates each of the 2019 Notes and the 2039 Notes as a separate series
of its securities issued pursuant to the Indenture. The 2019 Notes shall be issued initially in an
aggregate principal amount of $500,000,000 and the 2039 Notes shall be issued initially in an
aggregate principal amount of $500,000,000, except as permitted by Sections 304, 305 or 306 of the
Original Indenture.
SECTION 2.02.
Form of the Notes
. The Notes shall each be issued in the form of a
Global Note, duly executed by the Issuer and authenticated by the Trustee, which shall be deposited
with the Trustee as custodian for DTC and registered in the name of Cede & Co., as the nominee of
DTC. The 2019 Notes shall be substantially in the form of Exhibit A attached hereto, and the 2039
Notes shall be substantially in the form of Exhibit B attached hereto. So long as DTC, or its
nominee, is the registered owner of a Global Note, DTC or its nominee, as the case may be, shall be
considered the sole owner or Holder of the Notes represented by such Global Note for all purposes
under the Indenture. Ownership of beneficial interests in such Global Note shall be shown on, and
transfers thereof will be effected only through, records maintained by DTC (with respect to
beneficial interests of participants) or by participants or Persons that hold interests through
participants (with respect to beneficial interests of beneficial owners).
SECTION 2.03.
Terms and Conditions of the 2019 Notes
. The 2019 Notes shall be
governed by all the terms and conditions of the Original Indenture, as supplemented by this First
Supplemental Indenture. In particular, the following provisions shall be terms of the 2019 Notes:
(a)
Title and Aggregate Principal Amount
. The title of the 2019 Notes shall be as
specified in the Recitals; and the aggregate principal amount of the 2019 Notes shall be as
specified in Section 2.01 of this Article II, except as permitted by Sections 304, 305 or 306 of
the Original Indenture.
(b)
Stated Maturity
. The 2019 Notes shall mature, and the unpaid principal thereon
shall be payable, on November 30, 2019 (the 2019 Maturity Date), subject to the provisions of the
Original Indenture and Articles III and IV below.
(c)
Interest
. The rate per annum at which interest shall be payable on the 2019 Notes
shall be 4.625%. Interest on the 2019 Notes shall be payable semi-annually in arrears on each May
30 and November 30, commencing on May 30, 2010 (each, a 2019 Interest Payment Date), to the
Persons in whose names the applicable 2019 Notes are registered in the Security Register applicable
to the 2019 Notes at the close of business on the immediately preceding May 15 or November 15,
respectively, prior to the applicable 2019 Interest Payment Date regardless of whether such day is
a Business Day (each, a 2019 Regular Record Date). Interest on the 2019 Notes shall be computed
on the basis of a 360-day year consisting of twelve 30-day months. Interest on the 2019 Notes
shall accrue from and including November 17, 2009. If a 2019 Interest Payment Date or the 2019
Maturity Date falls on a day that is not a Business Day, the payment will be made on the next
Business Day as if it were made on the date the
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payment was due, and no interest will accrue on the amount so payable for the period from and
after that 2019 Interest Payment Date or the 2019 Maturity Date, as the case may be, to the date
the payment is made. Interest payments will include accrued interest from and including the date
of issue or from and including the last date in respect to which interest has been paid, as the
case may be, to, but excluding, the 2019 Interest Payment Date or the 2019 Maturity Date, as the
case may be.
(d)
Registration and Form
. The 2019 Notes shall be issuable as Registered Securities
as provided in Section 2.02 of this Article II. The 2019 Notes shall be issued and may be
transferred only in minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof. All payments of principal, Redemption Price and accrued unpaid interest in respect of the
2019 Notes shall be made by the Issuer in immediately available funds.
(e)
Defeasance and Covenant Defeasance
. The provisions for defeasance in Section 1302
of the Original Indenture, and the provisions for covenant defeasance in Section 1303 of the
Original Indenture, shall be applicable to the 2019 Notes.
(f)
Further Issues
. Notwithstanding anything to the contrary contained herein or in
the Original Indenture, the Issuer may, from time to time, without the consent of or notice to the
Holders, create and issue further securities having the same ranking and terms and conditions as
the 2019 Notes in all respects, except for issue date, the public offering price and, in some
cases, the first interest payment date. Additional 2019 Notes issued in this manner shall be
consolidated with and shall form a single series with the previously outstanding 2019 Notes.
Notice of any such issuance shall be given to the Trustee and a new supplemental indenture shall be
executed in connection with the issuance of such additional 2019 Notes.
(g)
Other Terms and Conditions
. The 2019 Notes shall have such other terms and
conditions as provided in the form thereof attached as Exhibit A.
SECTION 2.04.
Terms and Conditions of the 2039 Notes
. The 2039 Notes shall be
governed by all the terms and conditions of the Original Indenture, as supplemented by this First
Supplemental Indenture. In particular, the following provisions shall be terms of the 2039 Notes:
(a)
Title and Aggregate Principal Amount
. The title of the 2039 Notes shall be as
specified in the Recitals; and the aggregate principal amount of the 2039 Notes shall be as
specified in Section 2.01 of this Article II, except as permitted by Sections 304, 305 or 306 of
the Original Indenture.
(b)
Stated Maturity
. The 2039 Notes shall mature, and the unpaid principal thereon
shall be payable, on November 30, 2039 (the 2039 Maturity Date), subject to the provisions of the
Original Indenture and Articles III and IV below.
(c)
Interest
. The rate per annum at which interest shall be payable on the 2039 Notes
shall be 5.750%. Interest on the 2039 Notes shall be payable semi-annually in arrears on each May
30 and November 30, commencing on May 30, 2010 (each, a 2039 Interest Payment Date), to the
Persons in whose names the applicable 2039 Notes are registered in the Security Register applicable
to the 2039 Notes at the close of business on the immediately preceding May 15 or November 15,
respectively, prior to the applicable 2039 Interest Payment Date regardless of whether such day is
a Business Day (each, a 2039 Regular Record Date). Interest on the 2039 Notes shall be computed
on the basis of a 360-day year consisting of twelve 30-day months. Interest on the 2039 Notes
shall accrue from and including November 17, 2009. If a 2039 Interest Payment Date or the 2039
Maturity Date falls on a day that is not a Business Day, the payment will be made on the next
Business Day as if it were made on the date the payment was due, and no interest will accrue on the
amount so payable for the period from and after that
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2039 Interest Payment Date or the 2039 Maturity Date, as the case may be, to the date the
payment is made. Interest payments will include accrued interest from and including the date of
issue or from and including the last date in respect to which interest has been paid, as the case
may be, to, but excluding, the 2039 Interest Payment Date or the 2039 Maturity Date, as the case
may be.
(d)
Registration and Form
. The 2039 Notes shall be issuable as Registered Securities
as provided in Section 2.02 of this Article II. The 2039 Notes shall be issued and may be
transferred only in minimum denominations of $2,000 and integral multiples of $1,000 in excess
thereof. All payments of principal, Redemption Price and accrued unpaid interest in respect of the
2039 Notes shall be made by the Issuer in immediately available funds.
(e)
Defeasance and Covenant Defeasance
. The provisions for defeasance in Section 1302
of the Original Indenture, and the provisions for covenant defeasance in Section 1303 of the
Original Indenture, shall be applicable to the 2039 Notes.
(f)
Further Issues
. Notwithstanding anything to the contrary contained herein or in
the Original Indenture, the Issuer may, from time to time, without the consent of or notice to the
Holders, create and issue further securities having the same ranking and terms and conditions as
the 2039 Notes in all respects, except for issue date, the public offering price and, in some
cases, the first interest payment date. Additional 2039 Notes issued in this manner shall be
consolidated with and shall form a single series with the previously outstanding 2039 Notes.
Notice of any such issuance shall be given to the Trustee and a new supplemental indenture shall be
executed in connection with the issuance of such additional 2039 Notes.
(g)
Other Terms and Conditions
. The 2039 Notes shall have such other terms and
conditions as provided in the form thereof attached as Exhibit B.
SECTION 2.05.
Ranking
. The Notes shall be general unsecured obligations of the
Issuer. The Notes shall rank
pari passu
in right of payment with all unsecured and unsubordinated
indebtedness of the Issuer and senior in right of payment to all subordinated indebtedness of the
Issuer.
SECTION 2.06.
Sinking Fund
. The Notes will not be entitled to any sinking fund.
ARTICLE III
REDEMPTION
SECTION 3.01.
Optional Redemption
.
(a) The Notes are redeemable, in whole or in part from time to time, at the option of the
Issuer at a redemption price (the Redemption Price) equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed on that Redemption Date;
and
(ii) the sum of the present values of the remaining scheduled payments of principal and
interest on the Notes being redeemed on that Redemption Date (not including any portion of
such payments of interest accrued as of the Redemption Date), discounted to the Redemption
Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate, plus 20 basis points, in the case of the 2019 Notes, and 25 basis points,
in the case of the 2039 Notes,
plus, in each case, accrued and unpaid interest thereon to the Redemption Date.
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(b) Notwithstanding subsection (a) above, installments of interest on the Notes that are due
and payable on the 2019 Interest Payment Dates or the 2039 Interest Payment Dates, as the case may
be, falling on or prior to a Redemption Date will be payable on such 2019 Interest Payment Date or
2039 Interest Payment Date to the registered Holders as of the close of business on the relevant
2019 Regular Record Date or 2039 Regular Record Date, as the case may be, according to the terms of
the Notes and the Indenture. Unless the Issuer defaults in payment of the Redemption Price, on and
after the Redemption Date, interest will cease to accrue on any Notes that are called for
redemption.
(c) Notices of redemption will be mailed at least 30 but not more than 60 days before the
Redemption Date to each Holder of the Notes to be redeemed at its registered address. The Issuer
will calculate the Redemption Price and will deliver an Officers Certificate to the Trustee
setting forth the Redemption Price no later than two Business Days prior to the Redemption Date.
(d) If less than all the Notes of any series are to be redeemed at any time, the Notes to be
redeemed will be selected by lot by DTC, in the case of Global Notes, or by the Trustee by a method
the Trustee deems to be fair and appropriate, in the case of Notes that are not represented by a
Global Note.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.01.
Repurchase at the Option of Holders Upon a Change of Control Repurchase
Event
.
(a) If a Change of Control Repurchase Event occurs, unless the Issuer has exercised its right
to redeem the Notes pursuant to the Indenture, the Issuer will be required to make an offer to each
Holder of the Notes to repurchase all or any part (in minimum denominations of $2,000 and integral
multiples of $1,000 above that amount) of that Holders Notes at a repurchase price in cash equal
to 101% of the aggregate principal amount of the Notes repurchased plus any accrued and unpaid
interest on the Notes repurchased to the date of repurchase.
(b) Within 30 days following any Change of Control Repurchase Event or, at the option of the
Issuer, prior to any Change of Control, but after the public announcement of an impending Change of
Control, the Issuer will mail a notice to each Holder, with a copy to the Trustee, describing the
transaction or transactions that constitute or may constitute the Change of Control Repurchase
Event and offering to repurchase the Notes on the payment date specified in the notice, which date
will be no earlier than 30 days and no later than 60 days from the date such notice is mailed. The
notice shall, if mailed prior to the date of consummation of the Change of Control, state that the
offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to
the payment date specified in the notice.
(c) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any
other securities laws and regulations thereunder, to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with
the applicable securities laws and regulations and will not be deemed to have breached its
obligations under the Change of Control Repurchase Event provisions of the Notes or the Indenture
by virtue of such conflict.
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(d) On the Change of Control Repurchase Event payment date, the Issuer will, to the extent
lawful:
(i) accept for payment all the Notes or portions of the Notes (in minimum denominations
of $2,000 and integral multiples of $1,000 above that amount) properly tendered pursuant to
its offer;
(ii) deposit on or before 10:00 a.m., New York City time, with the Paying Agent an
amount equal to the aggregate purchase price in respect of all the Notes or portions of the
Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an Officers Certificate stating the aggregate principal amount of Notes being
purchased by the Issuer.
(e) The Paying Agent will promptly mail to each Holder of Notes properly tendered the purchase
price for the Notes, and the Trustee will promptly authenticate and mail (or, if a Global Note, to
be adjusted on the Schedule of Exchanges attached thereto) to each Holder a new Note equal in
principal amount to any unpurchased portion of any Notes surrendered; provided, that each new Note
will be in a principal amount of $2,000 or an integral multiple of $1,000 above that amount.
(f) The Issuer will not be required to make an offer to repurchase the Notes upon a Change of
Control Repurchase Event if a third party makes such an offer in the manner, at the times and
otherwise in compliance with the requirements for an offer made by the Issuer and such third party
purchases all Notes properly tendered and not withdrawn under its offer.
ARTICLE V
TRANSFER AND EXCHANGE
SECTION 5.01.
Transfer and Exchange
. Section 203(1) of the Original Indenture is
replaced in its entirety by the following:
SECTION 203.
Transfer and Exchange
.
(1) Transfer and Exchange of Global Securities. A Global Security may not be transferred
as a whole except by the Depository to a nominee of the Depository, by a nominee of the
Depository to the Depository or to another nominee of the Depository, or by the Depository or
any such nominee to a successor Depository or a nominee of such successor Depository. The
Company initially appoints The Depository Trust Company (DTC) to act as Depository with
respect to the Global Securities. Global Securities shall be exchanged by the Company for
Definitive Securities if:
(A) the Company delivers to the Trustee notice from the Depository that it is
unwilling or unable to continue to act as Depository for the Global Securities and
a successor Depository is not appointed by the Company within 90 days after the
date of such notice from the Depository;
(B) the Company delivers to the Trustee notice from the Depository that it is
no longer a clearing agency registered under the Exchange Act;
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(C) the Company, in its sole discretion and subject to the procedures of the
Depository, determines that the Global Securities (in whole but not in part) should
be exchanged for Definitive Securities and delivers written notice to such effect
to the Trustee; or
(D) there shall have occurred and be continuing an Event of Default under this
Indenture and the Trustee has received a request from the Depository or any Holder
to issue Definitive Securities.
Upon the occurrence of any of the preceding events in (A), (B) or (C) above, the
Company will notify the Trustee in writing that, upon surrender by the Participants
of their interest in such Global Securities, Definitive Securities will be issued to
each Person that such Participants and the Depository identify as being the
beneficial owner of the related Securities. Beneficial interests in Global
Securities may be exchanged for Definitive Securities of the same series upon
request but only upon at least 30 days prior written notice given to the Trustee by
or on behalf of the Depository in accordance with customary procedures. Global
Securities also may be exchanged or replaced, in whole or in part, as provided in
Sections 304, 305 and 306 hereof. Except as otherwise provided above in this Section
203, every Security authenticated and delivered in exchange for, or in lieu of, a
Global Security or any portion thereof, pursuant to this Section 203 or Sections
304, 305 or 306 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Security. A Global Security may not be exchanged for another
Security other than as provided in this Section 203(1).
ARTICLE VI
TRUSTEE
SECTION 6.01.
Corporate Trust Office
. The Trustee is appointed as the principal
paying agent, transfer agent and registrar for the Notes and for the purposes of Section 1002 of
the Indenture. The Notes may be presented for payment at the Paying Agent Office of the Trustee or
at any other agency as may be appointed from time to time by the Issuer in The City of New York or
the City of Chicago.
SECTION 6.02.
Recitals of Fact
. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or
the due execution thereof by the Issuer. The recitals of fact contained herein shall be taken as
the statements solely of the Issuer and the Trustee assumes no responsibility for the correctness
thereof.
SECTION 6.03.
Successor.
Any corporation or association into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation or association
resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or association to which all or substantially all of the corporate trust business of
the Trustee may be sold or otherwise transferred, shall be the successor trustee hereunder without
any further act.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01.
Ratification of Original Indenture
. This First Supplemental Indenture
is executed and shall be construed as an indenture supplemental to the Original Indenture, and as
supplemented and modified hereby, the Original Indenture is in all respects ratified and confirmed,
and the Original Indenture and this First Supplemental Indenture shall be read, taken and construed
as one and the same instrument.
SECTION 7.02.
Effect of Headings
. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 7.03.
Successors and Assigns
. All covenants and agreements in this First
Supplemental Indenture by the Issuer shall bind its successors and assigns, whether so expressed or
not.
SECTION 7.04.
Separability Clause
. In case any one or more of the provisions
contained in this First Supplemental Indenture shall for any reason be held to be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 7.05.
Governing Law
. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.06.
Counterparts
. This First Supplemental Indenture may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be deemed to be an
original, but all such counterparts shall together constitute one and the same instrument.
11
* * * *
IN WITNESS WHEREOF
, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the date first above written.
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ZIMMER HOLDINGS, INC.
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By:
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/s/ James T. Crines
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Name:
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James T. Crines
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Title:
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Executive Vice President, Finance and
Chief Financial Officer
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ Gregory S. Clarke
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Name:
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Gregory S. Clarke
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Title:
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Vice President
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EXHIBIT A
FORM OF GLOBAL 2019 NOTE
[FACE OF GLOBAL NOTE]
THIS GLOBAL NOTE IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY), IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 203 OF THE INDENTURE,
(B) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 203(1) OF THE INDENTURE, (C) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND
(D) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP 98956P AA0
ZIMMER HOLDINGS, INC.
$500,000,000 4.625% Notes due 2019
Zimmer Holdings, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of FIVE HUNDRED MILLION Dollars (or such other lesser or
greater amount set forth on the Schedule of Exchanges of Interests in the Global
A-1
Security attached hereto) on November 30, 2019, and to pay interest thereon from November 17,
2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on May 30 and November 30 each year, commencing on May 30, 2010, at the rate of
4.625% per annum, until the principal hereof is paid or made available for payment. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 or the November 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holder of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company maintained for that purpose at the Paying Agent
Office of the Trustee, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided
,
however
, that at the
option of the Company payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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ZIMMER HOLDINGS. INC.
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By:
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Name:
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Title:
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Attest:
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Title:
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A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
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Wells Fargo Bank, National Association
as Trustee
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By:
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Authorized Signatory
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A-4
[FORM OF REVERSE OF NOTE]
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
November 17, 2009 (herein called the Indenture, which term shall have the meaning assigned to it
in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee
(herein called the Trustee, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof, limited in aggregate
principal amount to $500,000,000.
The Securities of this series are subject to redemption at any time, upon not less than 30
days and not more than 60 days notice by mail, as a whole or from time to time in part, at the
election of the Company (
provided
,
however
, that, if the Company shall have elected pursuant to the
Indenture to defease the entire Indebtedness of this Security or certain restrictive covenants and
Events of Defaults with respect to this Security, prior to making such election to redeem the
Securities it shall have deposited in trust amounts sufficient to pay the Redemption Price), on any
date prior to their Stated Maturity at a Redemption Price equal to the greater of (i) 100% of the
principal amount of such Securities to be redeemed, plus accrued interest thereon to the Redemption
Date and (ii) the sum of the present values of the Remaining Scheduled Payments (as defined below)
of such Securities to be redeemed, discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below), plus 20 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
Treasury Rate
means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
Comparable Treasury Issue
means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the series of Securities
to be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
Comparable Treasury Price
means, with respect to any Redemption Date, (1) the average of
four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, (2) if the Company can only obtain less than four
such Reference Treasury Dealer Quotations, the average of all such quotations or (3) if the Company
can only obtain one Reference Treasury Dealer Quotation, such quotation.
Quotation Agent
means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer
means (1) each of Banc of America Securities LLC, Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc. (or their respective affiliates that are Primary
Treasury Dealers) and their respective successors;
provided
,
however
, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City (a Primary Treasury
Dealer), the Company will substitute therefor another Primary Treasury Dealer, and (2) any other
Primary Treasury Dealer selected by the Company.
A-5
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Remaining Scheduled Payments
means, with respect to each Security to be redeemed, the
remaining scheduled payments of the principal thereof and interest thereon that would be due after
the related Redemption Date for such redemption;
provided
,
however
, that, if such Redemption Date
is not an Interest Payment Date with respect to such Security, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to
such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to
redeem the Securities of this series pursuant to the Indenture, the Company will be required to
make an offer to each Holder of the Securities of this series to repurchase all or any part (in
minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of that
Holders Securities of this series at a repurchase price in cash equal to 101% of the aggregate
principal amount of such Securities repurchased plus any accrued and unpaid interest on such
Securities repurchased to the date of repurchase, in accordance with and pursuant to the terms and
conditions set forth in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of
this Security or certain restrictive covenants and Events of Default with respect to this Security,
in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity or security reasonably satisfactory to it, and the Trustee shall not have
A-6
received from the Holders of a majority in principal amount of Securities of this series at
the time Outstanding a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security may be registered and this Security may be exchanged as provided in the
Indenture.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
A-7
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Insert assignees social security or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
as agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
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Your Signature:
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(Sign
exactly as your name appears on the other side of this Security)
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Date:
*NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the
following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of an interest in this Global Security for an interest in another
Global Security or for a Definitive Security, or exchanges of an interest in another Global
Security or a Definitive Security for an interest in this Global Security have been made:
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Amount of decrease
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Amount of increase
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Principal Amount of this
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Signature of authorized
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in Principal Amount of
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in Principal Amount of
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Global Security following
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signatory or Trustee or
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Date of Exchange
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this Global Security
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this Global Security
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such decrease or increase
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Securities Custodian
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A-9
EXHIBIT B
FORM OF GLOBAL 2039 NOTE
[FACE OF GLOBAL NOTE]
THIS GLOBAL NOTE IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY), IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE
TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 203 OF THE INDENTURE,
(B) THIS GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 203(1) OF THE INDENTURE, (C) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND
(D) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CUSIP 98956P AB8
ZIMMER HOLDINGS, INC.
$500,000,000 5.750% Notes due 2039
Zimmer Holdings, Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of FIVE HUNDRED MILLION Dollars (or such other lesser or
greater amount set forth on the Schedule of Exchanges of Interests in the Global
B-1
Security attached hereto) on November 30, 2039, and to pay interest thereon from November 17,
2009 or from the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on May 30 and November 30 each year, commencing on May 30, 2010, at the rate of
5.750% per annum, until the principal hereof is paid or made available for payment. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 or the November 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holder of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company maintained for that purpose at the Paying Agent
Office of the Trustee, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
provided
,
however
, that at the
option of the Company payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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ZIMMER HOLDINGS. INC.
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By:
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Name:
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Title:
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Attest:
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Title:
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B-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
Dated:
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Wells Fargo Bank, National Association
as Trustee
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By:
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Authorized Signatory
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B-4
[FORM OF REVERSE OF NOTE]
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture, dated as of
November 17, 2009 (herein called the Indenture, which term shall have the meaning assigned to it
in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee
(herein called the Trustee, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof, limited in aggregate
principal amount to $500,000,000.
The Securities of this series are subject to redemption at any time, upon not less than 30
days and not more than 60 days notice by mail, as a whole or from time to time in part, at the
election of the Company (
provided
,
however
, that, if the Company shall have elected pursuant to the
Indenture to defease the entire Indebtedness of this Security or certain restrictive covenants and
Events of Defaults with respect to this Security, prior to making such election to redeem the
Securities it shall have deposited in trust amounts sufficient to pay the Redemption Price), on any
date prior to their Stated Maturity at a Redemption Price equal to the greater of (i) 100% of the
principal amount of such Securities to be redeemed, plus accrued interest thereon to the Redemption
Date and (ii) the sum of the present values of the Remaining Scheduled Payments (as defined below)
of such Securities to be redeemed, discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below), plus 25 basis points, plus accrued and unpaid interest thereon to the Redemption Date.
Treasury Rate
means, with respect to any Redemption Date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
Comparable Treasury Issue
means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the series of Securities
to be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
Comparable Treasury Price
means, with respect to any Redemption Date, (1) the average of
four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, (2) if the Company can only obtain less than four
such Reference Treasury Dealer Quotations, the average of all such quotations or (3) if the Company
can only obtain one Reference Treasury Dealer Quotation, such quotation.
Quotation Agent
means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer
means (1) each of Banc of America Securities LLC, Citigroup Global
Markets Inc. and J.P. Morgan Securities Inc. (or their respective affiliates that are Primary
Treasury Dealers) and their respective successors;
provided
,
however
, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City (a Primary Treasury
Dealer), the Company will substitute therefor another Primary Treasury Dealer, and (2) any other
Primary Treasury Dealer selected by the Company.
B-5
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Remaining Scheduled Payments
means, with respect to each Security to be redeemed, the
remaining scheduled payments of the principal thereof and interest thereon that would be due after
the related Redemption Date for such redemption;
provided
,
however
, that, if such Redemption Date
is not an Interest Payment Date with respect to such Security, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to
such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If a Change of Control Repurchase Event occurs, unless the Company has exercised its right to
redeem the Securities of this series pursuant to the Indenture, the Company will be required to
make an offer to each Holder of the Securities of this series to repurchase all or any part (in
minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of that
Holders Securities of this series at a repurchase price in cash equal to 101% of the aggregate
principal amount of such Securities repurchased plus any accrued and unpaid interest on such
Securities repurchased to the date of repurchase, in accordance with and pursuant to the terms and
conditions set forth in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of
this Security or certain restrictive covenants and Events of Default with respect to this Security,
in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity or security reasonably satisfactory to it, and the Trustee shall not have
B-6
received from the Holders of a majority in principal amount of Securities of this series at
the time Outstanding a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after the respective due
dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security may be registered and this Security may be exchanged as provided in the
Indenture.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
B-7
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
(Insert assignees social security or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
as agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
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Your Signature:
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(Sign
exactly as your name appears on the other side of this Security)
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Date:
*NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the
following recognized signature Guarantee Programs: (i) The Securities Transfer Agent Medallion
Program (STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
B-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of an interest in this Global Security for an interest in another
Global Security or for a Definitive Security, or exchanges of an interest in another Global
Security or a Definitive Security for an interest in this Global Security have been made:
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Amount of decrease
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Amount of increase
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Principal Amount of this
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Signature of authorized
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in Principal Amount of
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in Principal Amount of
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Global Security following
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signatory or Trustee or
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Date of Exchange
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this Global Security
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this Global Security
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such decrease or increase
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Securities Custodian
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B-9