Exhibit 1.1
Execution Copy
$150,000,000
Hillenbrand, Inc.
5.500% Notes due 2020
Underwriting Agreement
July 6, 2010
J.P. Morgan Securities Inc.
As
Representative of the
several
Underwriters listed
in
Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
383 Madison Ave
New York, NY 10179
Ladies and Gentlemen:
Hillenbrand, Inc., an Indiana corporation (the Company), proposes to issue and sell to the
several Underwriters listed in Schedule 1 hereto (the Underwriters), for whom you are acting as
representative (the Representative), $150,000,000 principal amount of its 5.500% Notes due July
15, 2020 (the Securities). The Securities will be issued pursuant to an Indenture to be dated as
of July 9, 2010 (the Indenture) between the Company and U.S. Bank National Association, as
trustee (the Trustee).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1.
Registration Statement
. The Company has prepared and filed with the Securities and
Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the Securities Act), an automatic
shelf registration statement, as such term is defined under Rule 405 under the Securities Act, on
Form S-3 (File No. 333-167986), including a prospectus, relating to the Securities and such
registration statement became effective upon filing with the Commission on July 6, 2010 in
accordance with Rule 462(e). Such registration statement, as amended as of the Effective Date (as
defined below), including the Prospectus (as defined below), all exhibits thereto (excluding the
Form T-1, except where otherwise stated) and the information, if any, deemed pursuant to Rule 430A,
430B or 430C under the Securities Act to be part of the registration statement as of the Effective
Date (Rule 430 Information), is referred to herein as the Registration Statement; Effective
Date means the effective date of the Registration Statement pursuant to Rule 430B under the
Securities Act for purposes of liability under Section 11 of the Securities Act of the Company or
the Underwriters with respect to the offering
of the Securities; Base Prospectus means the base prospectus filed as part of the Registration
Statement, in the form in which it has most recently been filed with the Commission on or prior to
the date hereof, relating to the Securities; Preliminary Prospectus means the Base Prospectus, as
supplemented by the preliminary prospectus supplement specifically relating to the Securities, in
the form in which it has most recently been filed with the Commission pursuant to Rule 424(b) under
the Securities Act and provided to the Representative for use by the Underwriters in connection
with the offering of the Securities; Prospectus means the Base Prospectus, as supplemented by the
definitive prospectus supplement specifically relating to the Securities, in the form in which it
is filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance with
Section 4(a) hereof, including any documents incorporated by reference therein as of the date of
such filing. Any reference in this Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the Effective
Date or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any
reference to amend, amendment or supplement with respect to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after such Effective Date under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the Exchange Act) that are
deemed to be incorporated by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and the Prospectus.
As of 3:20 P.M. (the Time of Sale), the Company had prepared the following information
(collectively, the Time of Sale Information): a Preliminary Prospectus dated July 6, 2010,
including all documents incorporated therein by reference, and each free-writing prospectus (as
defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto as constituting
part of the Time of Sale Information.
2.
Purchase of the Securities by the Underwriters
. (a) The Company agrees to issue and
sell the Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth opposite such Underwriters name in
Schedule 1 hereto at a price equal to 98.251% of the principal amount thereof plus accrued
interest, if any, from July 9, 2010 to the Closing Date (as defined below). The Company will not
be obligated to deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Sidley Austin
LLP, 787 Seventh Avenue, New York, NY 10019 at 10:00 a.m., New York City time, on
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July 9, 2010, or at such other time or place on the same or such other date, not later than
the fifth business day thereafter, as the Representative and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to herein as the Closing Date.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representative against delivery to the nominee of
The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the Global Note), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representative not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arms length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company, or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company, or any
other persons as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigations and appraisals of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes fiduciary or similar duty to the Company, in connection with the transactions
contemplated hereby or the process relating thereto.
3.
Representations and Warranties of the Company
. The Company represents and warrants to
each Underwriter that:
(a)
Preliminary Prospectus
. No order preventing or suspending the use of the Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
provided
that the Company does not make any representation
and warranty with respect to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representative expressly for use in the Preliminary Prospectus.
(b)
Time of Sale Information
. The Time of Sale Information, at the Time of Sale did not, and on
the Closing Date will not, contain 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
that the Company does not make any
representation and warranty with respect to any statements or omissions made in
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reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for use in such Time of
Sale Information. No statement of material fact included in the Prospectus has been omitted from
the Time of Sale Information and no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has been omitted therefrom.
(c)
Issuer Free Writing Prospectus
. The Company (including, in each case, its agents and
representatives, other than the Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to or will not prepare, make, use, authorize, approve or
refer to any written communication (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Securities (each such
communication by the Company, or its respective agents and representatives (other than a
communication referred to in clauses (i), (ii) or (iii) below) an Issuer Free Writing Prospectus)
other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the
Prospectus, (iv) the documents listed on Annex B hereto as constituting the Time of Sale
Information and (v) any electronic road show or other written communications, in each case approved
in writing in advance by the Representative. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus, did not, and on the Closing Date will not,
contain 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
that the Company does not make any representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for use in any Issuer Free Writing
Prospectus. Each Issuer Free Writing Prospectus does not conflict with the information contained
in the Registration Statement, the Preliminary Prospectus or the Prospectus.
(d)
Registration Statement and Prospectus
. The Registration Statement is an automatic shelf
registration statement as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; the Registration Statement
became effective upon filing with the Commission under Rule 462(e) under the Securities Act on July
6, 2010 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 Securities 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
Securities Act against the Company or related to the offering has been initiated or threatened by
the Commission; the Registration Statement, as of the Effective Date, complies, and any amendment
thereto as of the date it becomes effective, will comply in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission thereunder (collectively, the Trust Indenture Act), and the Registration
Statement, as of the
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Effective Date, did not and any amendment thereto, as of the date it becomes effective, will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and the Prospectus, as of the
date of the prospectus supplement comprising a part of such Prospectus, did not, and any amendment
or supplement to the Prospectus, as of the date of such amendment or supplement will not, and as of
the Closing Date, will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided
that
the Company does not make any representation and warranty with respect to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1)
of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto.
(e)
Incorporated Documents
. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, 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 Exchange Act and none of such documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, 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 Securities Act or the Exchange Act, as applicable, and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(f)
Financial Statements
. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and present fairly the financial position of the Company and
its subsidiaries and K-Tron International Inc. (K-Tron) and its subsidiaries, respectively, as of
the dates indicated and the results of their operations and the changes in their cash flows for the
periods specified subject, in the case of interim financial statements, to normal year-end
adjustments; such financial statements have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis throughout the periods
covered thereby, and the supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus has been derived from the accounting records of the Company
and its subsidiaries and presents fairly the information shown thereby; and the consolidating and
pro forma
financial information and the related notes thereto included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus have been
prepared in accordance with the applicable
5
requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions
underlying such consolidating and
pro forma
financial information are reasonable and are
set forth in the Registration Statement, the Time of Sale Information and the Prospectus.
(g)
No Material Adverse Change
. Since the date of the most recent financial statements of the
Company and K-Tron included or incorporated by reference in the Registration Statement, the Time of
Sale Information and the Prospectus, (i) there has not been any change in the capital stock (other
than issuances of capital stock pursuant to existing employee equity plans) or long-term debt of
the Company or any of its subsidiaries, or any dividend (other than the normal quarterly dividend)
or distribution of any kind declared, set aside for payment, paid or made by the Company on any
class of capital stock, or any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, financial condition or results of operations
of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that
is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor
any of its subsidiaries has sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus.
(h)
Organization and Good Standing
. The Company and each of its subsidiaries (i) have been duly
organized and are validly existing and in good standing (to the extent such concept is relevant in
any particular jurisdiction) under the laws of their respective jurisdictions of organization, with
full corporate or other organizational power and authority to own or lease, as the case may be, and
to operate their respective properties and conduct their respective businesses and (ii) are duly
qualified to do business and are in good standing (to the extent such concept is relevant in any
particular jurisdiction) in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such qualification, except where
the failure to be so qualified, in good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect or a prospective material adverse
effect on the business, properties, financial position or results of operations of the Company and
its subsidiaries taken as a whole or on the performance by the Company of its obligations under the
Securities (a Material Adverse Effect). The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the subsidiaries listed in
Schedule 2 to this Agreement. The subsidiaries listed in Schedule 2 to this Agreement under the
heading Significant Subsidiaries of the Company are deemed to be the Significant Subsidiaries
of the Company for purposes of this Agreement.
(i)
Capitalization
. The Company has an authorized capitalization as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus under the heading Capitalization and
all the outstanding shares of capital stock or other equity interests of the Company (i) have been
duly and validly authorized and issued, (ii) are fully paid and non-assessable and (iii) conform in
all material respects to the description thereof contained in the Registration Statement, the Time
of Sale Information and the Prospectus; and all outstanding shares of capital stock or other equity
interests of each subsidiary of the Company (x) have been
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duly and validly authorized and issued, (y) are fully paid and non-assessable, and (z) except for
one share of K-Tron China Ltd stock owned by an unaffiliated third party, are owned directly or
indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party.
(j)
Due Authorization
. The Company has full corporate power and authority to execute and deliver
the Securities and to execute and deliver this Agreement and the Indenture (collectively, together
with the Securities, the Transaction Documents); the Company has full corporate power and
authority to perform its obligations under the Transaction Documents to which it is a party; and
all corporate action required to be taken by the Company for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the due and proper authorization
and consummation of the transactions contemplated thereby has been duly and validly taken.
(k)
The Indenture
. The Indenture has been duly authorized by the Company, and upon the Effective
Date will have been duly qualified under the Trust Indenture Act, and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement of
creditors rights generally or by equitable principles relating to enforceability, regardless of
whether such enforceability is considered in any proceeding in equity or at law (collectively, the
Enforceability Exceptions).
(l)
The Securities
. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m)
Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered by the
Company.
(n)
Descriptions of the Transaction Documents
. Each Transaction Document conforms in all material
respects to the description thereof contained in the Registration Statement, the Time of Sale
Information and the Prospectus.
(o)
No Violation or Default
. Neither the Company nor any of its subsidiaries is (i) in violation
of its articles or certificate of incorporation or by-laws or similar organizational documents;
(ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory
7
authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation
that would not, individually or in the aggregate, have a Material Adverse Effect.
(p)
No Conflicts
. The execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party, the issuance and sale of the Securities, and
compliance by the Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not (i) 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 property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, note, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the articles or certificate of incorporation or by-laws or similar
organizational documents of the Company or any of its subsidiaries or (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any
such conflict, breach, violation or default that would not, individually or in the aggregate, have
a Material Adverse Effect.
(q)
No Consents Required
. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents to which it is a party, the issuance and sale of the Securities by the Company and
compliance by the Company with the terms thereof, and the consummation of the transactions
contemplated by the Transaction Documents, except for the registration of the Securities under the
Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, orders and registrations or qualifications as may be required by the
Financial Industry Regulatory Authority, Inc. (FINRA) and under applicable state securities laws
in connection with the purchase and distribution of the Securities by the Underwriters.
(r)
Legal Proceedings
. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory actions, suits or
proceedings, or, to the best knowledge of the Company, any investigations, pending to which the
Company or any of its subsidiaries is or may be a party or to which any property of the Company or
any of its subsidiaries is or may be the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could reasonably be expected to
have a Material Adverse Effect; to the best knowledge of the Company no such investigations,
actions, suits or proceedings are threatened or contemplated by any governmental or regulatory
authority or threatened by others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities Act to be described
in the Registration Statement or the Prospectus that are not so described in the Registration
Statement, the Time of Sale Information and the Prospectus and (ii) there are no contracts or other
documents that are required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement and the Prospectus that are not
8
so filed as exhibits to the Registration Statement or described in the Registration Statement, the
Time of Sale Information and the Prospectus.
(s)
Independent Accountants
. PricewaterhouseCoopers LLP, who has certified certain financial
statements of the Company and its subsidiaries is, and Grant Thornton LLP, who has certified
certain financial statements of K-Tron was prior to the Companys acquisition of K-Tron, an
independent registered public accounting firm with respect to the Company and its subsidiaries
within the applicable rules and regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the Securities Act.
(t)
Title to Real and Personal Property
. The Company and its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use, all items of real and
personal property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(u)
Title to Intellectual Property
. The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (the Intellectual Property) reasonably necessary for the conduct of their
respective businesses; and the conduct of their respective businesses will not conflict in any
material respect with any such rights of others, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with
any such rights of others, asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of an unfavorable decision, ruling or finding) or invalidity or
inadequacy, individually or in the aggregate, would have a Material Adverse Effect).
(v)
No Undisclosed Relationships
. No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company or any of its subsidiaries, on the other, that is required by
the Securities Act to be described in the Registration Statement and the Prospectus and that is not
so described in such documents and in the Time of Sale Information.
(w)
Investment Company Act
. 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 Registration
Statement, the Time of Sale Information and the Prospectus, will not be an investment company or
an entity controlled by an investment company within the meaning of the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
Investment Company Act).
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(x)
Taxes
. The Company and its subsidiaries have paid all federal, state, local and foreign taxes
and filed all tax returns required to be paid or filed through the date hereof; and except as
otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus,
there is no tax deficiency that has been, or could reasonably be expected to be, asserted against
the Company or any of its subsidiaries or any of their respective properties or assets, except for
where such non-payment, failure to file or deficiency would not, individually or in the aggregate,
have a Material Adverse Effect.
(y)
Licenses and Permits
. The Company and its subsidiaries possess all licenses, certificates,
permits and other authorizations issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory authorities that are
necessary for the ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Time of Sale Information and
the Prospectus, except where the failure to possess or make the same would not, individually or in
the aggregate, have a Material Adverse Effect; and except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its
subsidiaries has received notice of any revocation or modification of any such license,
certificate, permit or authorization or has any reason to believe that any such license,
certificate, permit or authorization will not be renewed in the ordinary course, except where such
revocation, modification or failure to renew would not, individually or in the aggregate, have a
Material Adverse Effect.
(z)
No Labor Disputes
. No labor disturbance by or dispute with employees of the Company or any of
its subsidiaries exists or, to the best knowledge of the Company, is contemplated or threatened and
the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of its or its subsidiaries principal suppliers, contractors or customers, except
as would not have a Material Adverse Effect.
(aa)
Compliance With Environmental Laws
. (i) The Company and its subsidiaries (x) are, and at all
prior times were, in compliance with any and all applicable federal, state, local and foreign laws,
rules, regulations, requirements, decisions and orders relating to the protection of human health
or safety, the environment, natural resources, hazardous or toxic substances or wastes, pollutants
or contaminants (collectively, Environmental Laws); (y) have received and are in compliance with
all permits, licenses, certificates or other authorizations or approvals required of them under
applicable Environmental Laws to conduct their respective businesses; and (z) have not received
notice of any actual or potential liability under or relating to any Environmental Laws, including
for the investigation or remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, and have no knowledge of any event or condition that would
reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities
associated with Environmental Laws of or relating to the Company or its subsidiaries, and (iii)
except as described in each of the Time of Sale Information and the Prospectus, (x) there are no
proceedings that are pending, or that are known to be contemplated, against the Company or any of
its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other
than such proceedings regarding which it is reasonably believed no monetary sanctions of $500,000
or more will be imposed, (y) the Company and its subsidiaries are not aware of any issues regarding
compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or
concerning
10
hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be
expected to have a Material Adverse Effect, and (z) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any Environmental Laws, except in the case of
each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits,
licenses or approvals, or cost or liability, as would not, individually or in the aggregate, have a
Material Adverse Effect.
(bb)
Compliance With ERISA
. (i) Each employee benefit plan, within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (ERISA), for which the Company or
any member of its Controlled Group (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as
amended (the Code)) would have any liability (each, a Plan) has been maintained in compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan
excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each
Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no
accumulated funding deficiency as defined in Section 412 of the Code, whether or not waived, has
occurred or is reasonably expected to occur; (iv) the fair market value of the assets of each Plan
exceeds the present value of all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan); (v) no reportable event (within the meaning of Section
4043(c) of ERISA) has occurred or is reasonably expected to occur; and (vi) neither the Company nor
any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the
ordinary course and without default) in respect of a Plan (including a multiemployer plan, within
the meaning of Section 4001(a)(3) of ERISA).
(cc)
Disclosure Controls
. The Company maintains an effective system of disclosure controls and
procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in
the Commissions rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Companys management as appropriate to allow
timely decisions regarding required disclosure. The Company has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange
Act. To the best knowledge of the Company, K-Tron maintained an effective system of disclosure
controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that was designed to
ensure that information required to be disclosed by K-Tron in reports that it filed or submitted
under the Exchange Act was recorded, processed, summarized and reported within the time periods
specified in the Commissions rules and forms, including controls and procedures designed to ensure
that such information was accumulated and communicated to K-Trons management as appropriate to
allow timely decisions regarding required disclosure. To the best knowledge of the Company, K-Tron
has carried out evaluations of the effectiveness of its disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
11
(dd)
Accounting Controls
. The Company and its subsidiaries maintain systems of internal control
over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles, including, but not limited to internal accounting controls 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 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. Except as disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no material weaknesses in the Companys internal
controls.
(ee)
Insurance
. Except as would not individually or in the aggregate have a Material Adverse
Effect, the Company and its subsidiaries have insurance covering their respective properties,
operations, personnel and businesses, including business interruption insurance, which insurance is
in amounts and insures against such losses and risks as are adequate to protect the Company and its
subsidiaries and their respective businesses; and neither the Company nor any of its subsidiaries
has (i) received notice from any insurer or agent of such insurer that capital improvements or
other expenditures are required or necessary to be made in order to continue such insurance or (ii)
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 at reasonable cost from similar insurers as may
be necessary to continue its business.
(ff)
No Unlawful Payments
. Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company and its subsidiaries, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(gg)
Compliance with Money Laundering Laws
. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company and its subsidiaries, threatened.
12
(hh)
Compliance with OFAC
. None of the Company, any of its subsidiaries or, to the best knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (OFAC); and the Company will not directly
or indirectly use the proceeds of the offering of the Securities hereunder, 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.
(ii)
Solvency
. On and immediately after the Closing Date, the Company (after giving effect to
the issuance of the Securities and the other transactions related thereto as described in the
Registration Statement, the Time of Sale Information and the Prospectus) will be Solvent. As used
in this paragraph, the term Solvent means, with respect to a particular date, that on such date
(i) the present fair market value (or present fair saleable value) of the assets of the Company is
not less than the total amount required to pay the liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii)
the Company is able to realize upon its assets and pay its debts and other liabilities, contingent
obligations and commitments as they mature and become due in the normal course of business; (iii)
assuming consummation of the issuance of the Securities as contemplated by this Agreement, the
Registration Statement, the Time of Sale Information and the Prospectus, the Company is not
incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iv)
the Company is not engaged in any business or transaction, and does not propose to engage in any
business or transaction, for which its property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which the Company is
engaged; and (v) Company is not a defendant in any civil action that would reasonably be expected
to result in a judgment that the Company is or would become unable to satisfy. The amount of
contingent liabilities at any time shall be computed as the amount that, in light of all facts and
circumstances existing at the time, represents the amount that can reasonably be expected to become
an actual or matured liability.
(jj)
Senior Indebtedness
. The Securities constitute senior indebtedness as such term is
defined in any indenture or agreement governing any outstanding subordinated indebtedness of the
Company.
(kk)
No Restrictions on Subsidiaries
. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiarys capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiarys properties or assets to the Company
or any other subsidiary of the Company.
(ll)
No Brokers Fees
. Neither the Company nor any of its subsidiaries is a party to any contract,
agreement or understanding with any person (other than this Agreement) that would give rise to a
valid claim against the Company or any of its subsidiaries or any Underwriter for a brokerage
commission, finders fee or like payment in connection with the offering and sale of the
Securities.
13
(mm)
No Registration Rights
. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or the issuance and sale of the Securities.
(nn)
No Stabilization
. Neither the Company nor any of its subsidiaries has taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
(oo)
Business With Cuba
. The Company has complied with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business with the Government of Cuba
or with any person or affiliate located in Cuba.
(pp)
Margin Rules
. Neither the issuance, sale and delivery of the Securities nor the application
of the proceeds thereof by the Company as described in the Registration Statement, the Time of Sale
Information and the Prospectus will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(qq)
Forward-Looking Statements
. No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement,
the Time of Sale Information and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(rr)
Statistical and Market Data
. Nothing has come to the attention of the Company that has caused
the Company to believe that the statistical and market-related data included in the Registration
Statement, the Time of Sale Information and the Prospectus is not based on or derived from sources
that are reliable and accurate in all material respects.
(ss)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company or, to the
best knowledge of the Company, any of the Companys directors or officers, in their capacities as
such, to comply in any material respect with the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the Sarbanes-Oxley Act), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(tt)
Status under the Securities Act
. The Company is not an ineligible issuer and is a well-known
seasoned issuer, in each case as defined under the Securities Act, in each case at the times
specified in the Securities Act in connection with the offering of the Securities.
4.
Further Agreements of the Company
. The Company covenants and agrees with each
Underwriter that:
(a)
Required Filings
. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus (including the Term Sheet in the form of Annex C
hereto) to the extent required by Rule 433 under the Securities Act; and will file promptly all
reports and any definitive proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities; and the Company
14
will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent
not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City
time, on the business day next succeeding the date of this Agreement in such quantities as the
Representative may reasonably request. The Company will pay the registration fees for this
offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without
giving effect to the proviso therein) and otherwise in accordance with Rule 457(r) under the
Securities Act, and in any event prior to the Closing Date.
(b)
Delivery of Copies
. The Company will deliver, without charge, (i) to the Representative,
two signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto, in each case including all exhibits and consents
filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of
the Prospectus (including all amendments and supplements thereto and documents incorporated by
reference therein) and each Issuer Free Writing Prospectus as the Representative may reasonably
request. As used herein, the term Prospectus Delivery Period means such period of time after the
first date of the public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses
. Before making, preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and
before filing any amendment or supplement to the Registration Statement or the Prospectus, whether
before or after the Effective Date, the Company will furnish to the Representative and counsel for
the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for
review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free
Writing Prospectus or file any such proposed amendment or supplement to which the Representative
reasonably objects.
(d)
Notice to the Representative
. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus
or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the
receipt of any comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (iv) of the issuance by the Commission of
any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of the Preliminary Prospectus or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence
of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of
Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free
Writing Prospectus is delivered
15
to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection
of the Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any
notice with respect to any suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company will use its reasonable best efforts to prevent the issuance of any such order suspending
the effectiveness of the Registration Statement, preventing or suspending the use of the
Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities
and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e)
Time of Sale Information
. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include 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, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representative may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f)
Ongoing Compliance with Securities Laws
. If during the Prospectus Delivery Period (i) any
event shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would include 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, in the
light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading
or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c)
above, file with the Commission and furnish to the Underwriters and to such dealers as the
Representative may designate, such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented will not, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law.
(g)
Blue Sky Compliance
. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities;
provided
that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h)
Earning Statement
. The Company will make generally available to its security holders and
the Representative as soon as practicable an earning statement that satisfies the
16
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder.
(i)
Clear Market
. During the period from the date hereof through and including the date that
is 90 days after the date hereof, neither the Company nor any of its subsidiaries will, without the
prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of
any debt securities issued or guaranteed by the Company or any of its subsidiaries and having a
tenor of more than one year.
(j)
Use of Proceeds
. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading Use of proceeds.
(k)
No Stabilization
. Neither the Company nor any of its subsidiaries will take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
(l)
Record Retention
. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5.
Certain Agreements of the Underwriters
. Each Underwriter hereby represents and agrees
that
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex B or
prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or
(iii) any free writing prospectus prepared by such underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
Underwriter Free Writing Prospectus). Notwithstanding the foregoing, the Underwriters may use a
term sheet substantially in the form of Annex C hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6.
Conditions of Underwriters Obligations
. The obligation of each Underwriter to purchase
and to pay for the Securities on the Closing Date as provided herein is subject to the performance
by the Company of its covenants and other obligations hereunder and to the following additional
conditions:
17
(a)
Registration Compliance; No Stop Order
. No order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to
Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 4(a) hereof; the Company shall have paid the registration fees for this offering
within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving
effect to the proviso therein) and otherwise in accordance with Rule 457(r) under the Securities
Act; and all requests by the Commission for additional information shall have been complied with to
the reasonable satisfaction of the Representative.
(b)
Representations and Warranties
. The representations and warranties of the Company
contained in this Agreement shall be true and correct on the date hereof and on and as of the
Closing Date; and the statements of the Company and its officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c)
No Downgrade
. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock of or guaranteed by the Company or any
of its subsidiaries by any nationally recognized statistical rating organization, as such term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with respect to, its rating of the Securities or of any other debt securities or
preferred stock of or guaranteed by the Company or any of its subsidiaries (other than an
announcement with positive implications of a possible upgrading).
(d)
No Material Adverse Change
. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the reasonable judgment of the
Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery
of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e)
Officers Certificate
. The Representative shall have received on and as of the Closing
Date certificates of an executive officer of the Company who has specific knowledge of the
Companys financial matters and is satisfactory to the Representative (i) confirming that such
officer has carefully reviewed the Registration Statement, the Time of Sale Information and the
Prospectus and, to the best knowledge of such officer, the representations set forth in
Sections 3(b) or 3(d) hereof are true and correct, (ii) confirming that, the other representations
and warranties of the Company in this Agreement are true and correct and that the Company has
complied with all agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c)
and (d) above.
18
(f)
Comfort Letters
. On the date of this Agreement and on the Closing Date,
PricewaterhouseCoopers LLP and Grant Thornton LLP shall have each furnished to the Representative,
at the request of the Company, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative,
containing statements and information of the type customarily included in accountants comfort
letters to underwriters with respect to the financial statements and certain financial information
contained or incorporated by reference in the Registration Statement, the Time of Sale Information
and the Prospectus;
provided
that the letters delivered on the Closing Date shall use a
cut-off date no more than three business days prior to the Closing Date.
(g)
Opinions and 10b-5 Statements of Outside Counsel and General Counsel for the Company.
Baker & Daniels LLP, outside counsel for the Company, and John R. Zerkle, General Counsel of the
Company, shall have furnished to the Representative, at the request of the Company, their written
opinions and 10b-5 Statements, dated the Closing Date and addressed to the Underwriters, in form
and substance reasonably satisfactory to the Representative, to the effect set forth in Annex A-1
and A-2 hereto, respectively.
(h)
Opinion and 10b-5 Statement of Counsel for the Underwriters
. The Representative shall
have received on and as of the Closing Date an opinion and 10b-5 Statement of Sidley Austin
llp
, counsel for the Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(i)
No Legal Impediment to Issuance
. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(j)
Good Standing
. The Representative shall have received on and as of the Closing Date
satisfactory evidence of the good standing (to the extent such concept is relevant in any
particular jurisdiction) of the Company and its Significant Subsidiaries in their respective
jurisdictions of organization and their good standing (to the extent such concept is relevant in
any particular jurisdiction) in such other jurisdictions as the Representative may reasonably
request, in each case in writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(k)
Additional Documents
. On or prior to the Closing Date, the Company shall have furnished
to the Representative such further certificates and documents as the Representative may reasonably
request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
19
7.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters
. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein.
(b)
Indemnification of the Company
. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors and officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities that arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to such Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being
understood and agreed that the only such information consists of the following: (i) the
information contained in the Prospectus in the third paragraph under the caption Underwriting,
(ii) the information contained in the Prospectus in the third sentence of the seventh paragraph
under the caption Underwriting, and (iii) the information contained in the Prospectus in the
eighth paragraph under the caption Underwriting.
(c)
Notice and Procedures
. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing;
provided
that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 7. If any
such proceeding shall be brought
20
or asserted against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified
Person (who shall not, without the consent of the Indemnified Person, be counsel to the
Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification
pursuant to Section 7 that the Indemnifying Party may designate in such proceeding and shall pay
the fees and expenses of such proceeding and shall pay the fees and expenses of counsel related to
such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representative and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than
30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
(d)
Contribution
. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable
21
by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company or by the
Underwriters and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e)
Limitation on Liability
. The Company, and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such Underwriter
with respect to the offering of the Securities exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to
contribute pursuant to this Section 7 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f)
Non-Exclusive Remedies
. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8.
Effectiveness of Agreement
. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
9.
Termination
. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or materially
22
limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representative, is
material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale
or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the
Time of Sale Information and the Prospectus.
10.
Defaulting Underwriter
. (a) If, on the Closing Date, any Underwriter defaults on its
obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting
Underwriters may in their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after
any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term Underwriter
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities,
then the Company shall have the right to require each non-defaulting Underwriter to purchase the
principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriters
pro rata
share (based on the principal amount of Securities that such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set
23
forth in Section 11(a) hereof and except that the provisions of Section 7 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11.
Payment of Expenses
. (a) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents;
(iv) the fees and expenses of the Companys counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees
charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such parties);
(viii) all expenses and application fees incurred in connection with any filing with, and clearance
of the offering by FINRA.; and (ix) all expenses incurred by the Company in connection with any
road show presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline
to purchase the Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and
expenses of their counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
12.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and the officers and directors
and any controlling persons referred to herein, and the affiliates of each Underwriter referred to
in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be
a successor merely by reason of such purchase.
13.
Survival
. The respective indemnities, rights of contribution, representations, warranties
and agreements of the Company, and the Underwriters contained in this Agreement or made by or on
behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in
full force and effect, regardless of any termination of this Agreement or any investigation made by
or on behalf of the Company or the Underwriters.
24
14.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in
Rule 405 under the Securities Act.
15.
Miscellaneous
. (a)
Authority of the Representative
. Any action by the Underwriters
hereunder may be taken by J.P. Morgan Securities Inc. on behalf of the Underwriters, and any such
action taken by J.P. Morgan Securities Inc. shall be binding upon the Underwriters.
(b)
Notices
. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative
c/o J.P. Morgan Securities Inc., 383 Madison Avenue, New York, New York 10179 (fax: 212-834-6081);
Attention: Investment Grade Syndicate Desk. Notices to the Company shall be given to them at
Hillenbrand, Inc., One Batesville Boulevard, Batesville, Indiana 47006 (fax: 812-934-1344);
Attention: John R. Zerkle, Senior Vice President, General Counsel and Secretary.
(c)
Governing Law
. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(d)
Counterparts
. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e)
Amendments or Waivers
. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f)
Headings
. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
25
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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|
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Very truly yours,
HILLENBRAND, INC.
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|
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By
|
/s/ John R. Zerkle
|
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Name:
|
John R. Zerkle
|
|
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Title:
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Senior Vice President,
General Counsel
and Secretary
|
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Accepted: July 6, 2010
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
J.P. MORGAN SECURITIES INC.
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By
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/s/ Stephen L. Sheiner
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Authorized Signatory
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26
Schedule 1
|
|
|
|
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Underwriter
|
|
Principal Amount
|
|
J.P. Morgan Securities Inc.
|
|
$
|
67,500,000
|
|
Goldman, Sachs & Co.
|
|
$
|
18,750,000
|
|
PNC Capital Markets LLC
|
|
$
|
18,750,000
|
|
RBS Securities Inc.
|
|
$
|
9,000,000
|
|
U.S. Bancorp Investments, Inc.
|
|
$
|
9,000,000
|
|
Banc of America Securities LLC
|
|
$
|
7,500,000
|
|
Fifth Third Securities, Inc.
|
|
$
|
7,500,000
|
|
Loop Capital Markets LLC
|
|
$
|
6,000,000
|
|
Morgan Keegan & Company, Inc.
|
|
$
|
6,000,000
|
|
|
|
|
|
Total
|
|
$
|
150,000,000
|
|
Schedule 1-1
Schedule 2
Significant Subsidiaries of the Company:
Batesville Manufacturing, Inc.
Batesville Logistics, Inc.
Batesville Casket Company, Inc.
Batesville Services, Inc.
K-Tron International, Inc.
Premier Pneumatics, Inc.
Pennsylvania Crusher Corporation
Jeffrey Rader Corporation
K-Tron America, Inc.
K-Tron Investment Co.
Gundlach Equipment Corporation
K-Tron (Schweiz) AG
All other subsidiaries of the Company:
Batesville Casket Co. South Africa Pty, Ltd.
Batesville International Corporation
Batesville Casket de Mexico, S.A. de C.V.
Green Tree Manufacturing, Inc.
MCP, Inc.
Modern Wood Products, Inc.
WCP, Inc.
BCC JAWACDAH Holdings, LLC
Acorn Development Group, Inc.
The Forethought Group, Inc.
BV Acquisition, Inc.
NorthStar Industries, LLC
Batesville Holding UK Limited
Batesville Canada Ltd.
Batesville Casket UK Limited
Industrias Arga, S.A. de C.V.
Global Products Co., S.A. de C.V.
NADCO, S.A. de C.V.
K-Tron Technologies, Inc.
RC II, Inc.
K-Tron Colormax Limited
K-Tron PCS Limited
K-Tron China Limited
K-Tron Asia Pte Ltd
K-Tron Deutschland GmbH
K-Tron Great Britain Limited
K-Tron France S.a.r.l.
Schedule 2-1
Wuxi K-Tron Colormax Machinery Co., Ltd.
K-Tron (Shanghai) Co., Ltd.
Jeffrey Rader AB
Jeffrey Rader Canada Company
Schedule 2-2
Annex A-1
Form of Opinion of Outside Counsel for the Company
(-) The Registration Statement is an automatic shelf registration statement as defined under
Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such opinion on the date specified therein; the Issuer Free Writing
Prospectus was filed with the Commission pursuant to Rule 433 under the Securities Act specified in
such opinion on the date specified therein; and no order suspending the effectiveness of the
Registration Statement has been issued, 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
Securities Act has been received by the Company and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or in connection with the offering is pending
or, to the best knowledge of such counsel, threatened by the Commission.
(-) The Registration Statement, the Preliminary Prospectus, each Issuer Free Writing
Prospectus included in the Time of Sale Information and the Prospectus (other than the financial
statements and related schedules therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Securities Act; and the Indenture
complies as to form in all material respects with the requirements of the Trust Indenture Act.
(-) The Company has been duly organized and is validly existing under the laws of the State of
Indiana.
(-) The Company has an authorized capitalization as set forth in the Registration Statement,
the Time of Sale Information and the Prospectus under the heading Capitalization.
(-) The Company has full corporate power and authority to execute and deliver the Securities,
to execute and deliver this Agreement and to perform its obligations under the Transaction
Documents to which it is a party; and all corporate action required to be taken by the Company for
the due and proper authorization, execution and delivery of each of the Transaction Documents and
the due and proper authorization and consummation of the transactions contemplated thereby has been
duly and validly taken.
(-) The Indenture has been duly authorized, executed and delivered by the Company and,
assuming due execution and delivery thereof by the Trustee, constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its terms, subject to
the Enforceability Exceptions. The Indenture has been duly qualified under the Trust Indenture
Act.
(-) The Securities have been duly authorized, executed and delivered by the Company and, when
duly authenticated as provided in the Indenture and paid for as provided in this Agreement, will be
duly and validly issued and outstanding and will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with
A-1-1
their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of
the Indenture.
(-) Each Transaction Document conforms in all material respects to the description thereof
contained in the Registration Statement, the Time of Sale Information and the Prospectus.
(-) This Agreement has been duly authorized, executed and delivered by the Company.
(-) The execution, delivery and performance by the Company of each of the Transaction
Documents to which it is a party, the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the transactions contemplated by the
Transaction Documents will not (i) 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 property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, note, mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Company is a party and which has been filed by the
Company as an exhibit to its periodic reports filed with the Commission pursuant to the Exchange
Act; (ii) result in any violation of the provisions of the articles of incorporation or by-laws of
the Company; or (iii) result in the violation of any law or statute of the State of Indiana or the
federal laws of the United States, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation or default that would not, individually or in the aggregate, have a
Material Adverse Effect.
(-) No consent, approval, authorization, order, registration or qualification of or with any
court or arbitrator or governmental or regulatory authority of the State of Indiana or the United
States is required for the execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party, the issuance and sale of the Securities by the
Company and compliance by the Company with the terms thereof, and the consummation of the
transactions contemplated by the Transaction Documents, except for the registration of the
Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture
Act and such consents, approvals, authorizations, orders and registrations or qualifications as may
be required under applicable state securities laws in connection with the purchase and distribution
of the Securities by the Underwriters.
(-) The descriptions in the Registration Statement, the Time of Sale Information and the
Prospectus of statutes, legal, governmental and regulatory proceedings and contracts and other
documents are accurate in all material respects; the statements in the Preliminary Prospectus and
Prospectus under the heading Description of debt securities, Description of the notes,
Description of capital stock, Important provisions of our governing documents and Indiana law
and Material U.S. federal tax consequences, to the extent that they constitute summaries of
matters of law or regulation or legal conclusions, fairly summarize the matters described therein
in all material respects; and, to the best knowledge of such counsel, (A) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement or the Prospectus and that are not so
described in the Registration Statement, the Time of Sale Information and the
A-1-2
Prospectus and (B) there are no statutes, regulations or contracts and other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement or the Prospectus and that have not been so filed as
exhibits to the Registration Statement or described in the Registration Statement, the Time of Sale
Information and the Prospectus.
(-) After giving effect to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Registration Statement, the Time of Sale Information and the
Prospectus, the Company will not be an investment company or an entity controlled by an
investment company within the meaning of the Investment Company Act.
Such counsel shall also state that they have participated in conferences with representatives
of the Company and with representatives of its independent accountants and counsel at which
conferences the contents of the Registration Statement, the Time of Sale Information and the
Prospectus and any amendment and supplement thereto and related matters were discussed and,
although such counsel assumes no responsibility for the accuracy, completeness or fairness of the
Registration Statement, the Time of Sale Information, the Prospectus and any amendment or
supplement thereto (except as expressly provided above), nothing has come to the attention of such
counsel to cause such counsel to believe that the Registration Statement, at the time of its
effective date (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be
part of the Registration Statement at the time of effectiveness), contained any 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; that the Time of Sale Information, at the Time of Sale
contained any untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; or that the Prospectus or any amendment or supplement thereto as of its date and the
Closing Date contains any untrue statement of a material fact 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 as to matters of fact on certificates of
responsible officers of the Company and public officials that are furnished to the Underwriters.
The opinion of Baker & Daniels LLP described above shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
A-1-3
Annex 2
Form of Opinion of General Counsel for the Company
(-) Each of the Significant Subsidiaries has been duly organized and is validly existing and,
where applicable, in good standing under the laws of its jurisdiction of organization; and each of
the Company and the Significant Subsidiaries is duly qualified to do business and is, where
applicable, in good standing in each jurisdiction in which its ownership or lease of property or
the conduct of its businesses requires such qualification, and has all corporate power and
authority necessary to own or hold its properties and to conduct the businesses in which it is
engaged, except where the failure to be so qualified or have such power or authority would not,
individually or in the aggregate, have a Material Adverse Effect.
(-) All the outstanding shares of capital stock or other equity interests of each of the
Significant Subsidiaries have been duly and validly authorized and issued and are fully paid and
non-assessable.
(-) To the best knowledge of such counsel, except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject which, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; and, to the best knowledge of such counsel, no such investigations,
actions, suits or proceedings are threatened or contemplated by any governmental or regulatory
authority or threatened by others.
(-) The execution, delivery and performance by the Company of each of the Transaction
Documents to which it is a party, the issuance and sale of the Securities and compliance by the
Company with the terms thereof and the consummation of the transactions contemplated by the
Transaction Documents will not (i) 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 property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, note, mortgage, deed of trust, loan or credit agreement or
other agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions
of the charter or by-laws or similar organizational documents of the Company or any of its
subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse Effect.
(-) The documents incorporated by reference in the Time of Sale Information and the Prospectus
or any further amendment or supplement thereto made by the Company prior to the Closing Date (other
than the financial statements and related schedules therein, as to which such counsel need express
no opinion), when they were filed with the Commission, complied as to
A-2-1
form in all material respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and such counsel has no reason to believe that any of
such documents, when such documents were so filed, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statement therein, in the
light of the circumstances under which they were made when such documents were so filed, not
misleading (other than the financial statements and other financial information contained therein,
as to which such counsel need express no belief).
Such counsel shall also state that he has participated in conferences with representatives of
the Company and with representatives of its independent accountants and counsel at which
conferences the contents of the Registration Statement, the Time of Sale Information and the
Prospectus and any amendment and supplement thereto and related matters were discussed and,
although such counsel assumes no responsibility for the accuracy, completeness or fairness of the
Registration Statement, the Time of Sale Information, the Prospectus and any amendment or
supplement thereto (except as expressly provided above), nothing has come to the attention of such
counsel to cause such counsel to believe that the Registration Statement, at the time of its
effective date (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be
part of the Registration Statement at the time of effectiveness), contained any 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; that the Time of Sale Information, at the Time of Sale
contained any untrue statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they were made, not
misleading; or that the Prospectus or any amendment or supplement thereto as of its date and the
Closing Date contains any untrue statement of a material fact 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 as to matters of fact on certificates of
responsible officers of the Company and public officials that are furnished to the Underwriters.
The opinion of the General Counsel of the Company described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
A-2-2
Annex B
Time of Sale Information
Pricing Term Sheet dated July 6, 2010.
B-1
Annex C
Hillenbrand, Inc.
Pricing Term Sheet
5.500% Notes due 2020
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Issuer:
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Hillenbrand, Inc.
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Principal Amount:
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$150,000,000
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Security Type:
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Senior Notes
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Coupon:
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5.500%
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Yield to Maturity:
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5.645%
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Spread to Benchmark Treasury:
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270 basis points
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Benchmark Treasury:
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UST 3.500% due May 15, 2020
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Benchmark Treasury Spot and Yield:
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104-23 2.945%
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Price to Public:
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98.901%
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Gross Proceeds:
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$148,351,500
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Make-Whole Call:
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Treasury Rate plus 40 basis points
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Trade Date:
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July 6, 2010
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Settlement Date:
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July 9, 2010 (T+3)
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Maturity:
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July 15, 2020
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Interest Payment Dates:
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January 15 and July 15, commencing
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January 15, 2011
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Ratings*:
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Moodys: Baa3 (stable outlook)
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S&P: BBB (stable outlook)
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CUSIP/ISIN:
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CUSIP: 431571 AA6
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ISIN: US431571AA61
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Joint Book-Running Managers:
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J.P. Morgan Securities Inc.
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Goldman, Sachs & Co.
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Joint Lead Manager:
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PNC Capital Markets LLC
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Senior Co-Managers:
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RBS Securities Inc.
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U.S. Bancorp Investments, Inc.
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Co-Managers:
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Banc of America Securities LLC
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Fifth Third Securities, Inc.
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Loop Capital Markets LLC
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Morgan Keegan & Company, Inc.
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*
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A rating is not a recommendation to buy, sell or hold securities and may be subject to revision,
review, suspension, qualification or withdrawal at any time by the assigning rating agency.
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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,
C-1
the issuer, any underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling J.P. Morgan Securities Inc. collect at 212-834-4533.
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
C-2
Exhibit 4.2
FORM OF GLOBAL NOTE
Unless this certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) to the issuer or to its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
HILLENBRAND, INC.
5.500% Notes due 2020
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No.: R-1
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$150,000,000
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CUSIP No. 431571 AA6
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Hillenbrand, Inc., a corporation duly organized and existing under the laws of Indiana (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 its registered assigns,
the principal sum of $150,000,000 on July 15, 2020, and to pay interest thereon from July 9, 2010
or from the most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on January 15 and July 15 of each year, commencing January 15, 2011, at
the rate of 5.500% per annum, until the principal hereof is paid or made available for payment.
Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Note (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 January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to holders 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 Note will be
made at the office or agency of the Company maintained for that purpose in Indianapolis, Indiana,
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.
The Securities of this series are subject to redemption prior to the Stated Maturity as
described on the reverse hereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
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Dated: July 9, 2010
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HILLENBRAND, INC.
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By:
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Name:
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Title:
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3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and issued pursuant to the
within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Name:
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Title:
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4
REVERSE OF NOTE
Hillenbrand, Inc.
5.500% Notes due 2020
This Note is one of a duly authorized issue of securities of the Company (herein called the
Notes), issued and to be issued in one or more series under an Indenture, dated as of July 9,
2010 (herein called the Indenture), between the Company and U.S. Bank National Association, as
Trustee (herein called the Trustee, which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made 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 Note is one of the series
designated on the face hereof, initially limited in aggregate principal amount to $150,000,000.
The Company may from time to time, without notice to or the consent of the Holders of Outstanding
Notes, create and issue additional Notes (Additional Notes) ranking equally and ratably with the
Notes in all respects (other than for differences in the issue price, the date of issuance, the
payment of interests accruing prior to the issue date of such Additional Notes and the first
payment of interest following the issue date of such Additional Notes), provided that such
Additional Notes must be part of the same issue as the Notes for U.S. federal income tax purposes.
Any such Additional Notes shall be consolidated and form a single series with the Notes, including
for purposes of voting and redemptions .
The Company may, at its option, at any time and from time to time, redeem the Notes in whole
or in part, on not less than 30 nor more than 60 days prior notice mailed to the holders of the
Notes. The Notes will be redeemable at a redemption price, plus accrued and unpaid interest to the
date of redemption, equal to the greater of (1) 100% of the principal amount of the Notes to be
redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and
interest on the Notes to be redeemed that would be due after the related redemption date but for
such redemption (except that, if such redemption date is not an interest payment date, the amount
of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued
thereon to 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 40 basis points.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity (computed as of the second Business Day immediately
preceding such redemption date) 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.
5
Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker 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 the Notes.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Company.
Comparable Treasury Price means, with respect to any redemption date, (1) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker
obtains fewer than five such Reference Treasury Dealer Quotations, the average of all Quotations
obtained.
Reference Treasury Dealer means J.P. Morgan Securities Inc., its successors and assigns, and
four other nationally recognized investment banking firms that are Primary Treasury Dealers
specified from time to time by the Company, except that if any of the foregoing ceases to be a
primary U.S. government securities dealer in the United States (a Primary Treasury Dealer), the
Company is required to designate as a substitute another nationally recognized investment banking
firm that is a Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Independent Investment Banker, 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 Independent Investment Banker by such Reference
Treasury Dealer as of 3:30 p.m., New York City time, on the third Business Day preceding such
redemption date.
In the event of redemption of this Note in part only, a new Note or Notes of this series and
of like tenor of an authorized denomination for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof, and, in the event of transfer or exchange,
a new Note or Notes of this series and of like tenor and for a like aggregate principal amount will
be issued to the Holder, in the case of exchange, or the designated transferee or transferees, in
the case of transfer.
Upon the occurrence of a Change of Control Triggering Event with respect to the Notes, each
holder of the Notes shall have the right to require the Company to purchase all or a portion of
such holders Notes pursuant to the offer described below (the Change of Control Offer), at a
purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the Change of Control Payment), subject to the rights of holders of
the Notes on the relevant Regular Record Date to receive interest due on the relevant Interest
Payment Date.
6
Within 30 days following the date upon which the Change of Control Triggering Event occurred
with respect to this Note, or at the Companys option, prior to any Change of Control but after the
public announcement of the pending Change of Control, the Company will be required to send, by
first class mail, a notice to each holder of the Notes, with a copy to the Trustee, which notice
shall govern the terms of the Change of Control Offer. Such notice shall state, among other things,
the purchase date, which must be no earlier than 30 days nor later than 60 days from the date such
notice is mailed, other than as may be required by law (the Change of Control Payment Date). Such
notice, if mailed prior to the date of consummation of the Change of Control, shall state that the
Change of Control Offer is conditioned on the Change of Control being consummated on or prior to
the Change of Control Payment Date.
On the Change of Control Payment Date, the Company shall, to the extent lawful, (a) accept or
cause a third party to accept for payment all Notes or portions of Notes properly tendered pursuant
to the Change of Control Offer, (b) deposit or cause a third party to deposit
with the Paying Agent an amount equal to the Change of Control Payment in respect of all the
Notes or portions of the Notes properly tendered, and (c) 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 or portions of Notes being repurchased and that all conditions precedent
to the Change of Control Offer and to the repurchase by the Company of Notes pursuant to the Change
of Control Offer have been complied with.
The Company shall not be required to make a Change of Control Offer with respect to the Notes
if a third party makes such an offer in the manner, at the times and otherwise in compliance with
the requirements for such an offer made by the Company and such third party purchases all the Notes
properly tendered and not withdrawn under its offer.
The Company shall comply in all material respects with the requirements of Rule 14e-1 under
the Securities Exchange Act of 1934, as amended (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 Triggering Event. To the extent
that the provisions of any such securities laws or regulations conflict with the Change of Control
Offer provisions of the Notes, the Company shall comply with those securities laws and regulations
and shall not be deemed to have breached the Companys obligations under the Change of Control
Offer provisions of the Notes by virtue of any such conflict.
For purposes of the foregoing discussion of a Change of Control Offer, the following
definitions are applicable:
Change of Control means the occurrence of any of the following after the date of issuance of
the Notes:
7
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1.
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the direct or indirect sale, lease, 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 assets of the Company and its
subsidiaries taken as a whole to any person or group (as those terms are used in
Section 13(d)(3) of the Exchange Act) other than to the Company or one of its
subsidiaries;
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2.
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the consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that any person or group (as those terms
are used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
the Companys Voting Stock representing more than 50% of the voting power of its
outstanding Voting Stock;
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3.
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the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which any of the Companys outstanding Voting Stock or
Voting Stock of such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the Companys Voting Stock
outstanding immediately prior to such transaction constitutes, or is converted into or
exchanged for, Voting Stock representing more
than 50% of the voting power of the Voting Stock of the surviving Person immediately
after giving effect to such transaction;
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4.
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the first day on which a majority of the Companys Board of Directors are not
Continuing Directors; or
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5.
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the adoption of a plan relating to the Companys liquidation or dissolution.
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Change of Control Triggering Event means, with respect to the Notes, the Notes cease to be
rated Investment Grade by each of the Rating Agencies on any date during the period (the Trigger
Period) commencing 60 days prior to the first public announcement by the Company of any Change of
Control (or pending Change of Control) and ending 60 days following consummation of such Change of
Control (which Trigger Period will be extended following consummation of a Change of Control for so
long as any of the Rating Agencies has publicly announced that it is considering a possible ratings
change). If a Rating Agency is not providing a rating for the Notes at the commencement of any
Trigger Period, the Notes will be deemed to have ceased to be rated Investment Grade by such Rating
Agency during that Trigger Period.
Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have
occurred in connection with any particular Change of Control unless and until such Change of
Control has actually been consummated.
8
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of the Board of Directors of the Company on the date
of the issuance of the Notes; or (2) was nominated for election or elected to the Board of
Directors of the Company with the approval of at least a majority of the Continuing Directors who
were members of the Board of Directors of the Company at the time of such nomination or election
(either by a specific vote or by approval of the Companys proxy statement in which such member was
named as a nominee for election as a director, without objection to such nomination).
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating category of Moodys) and a rating of BBB- or better by S&P (or its equivalent
under any successor rating category of S&P), and the equivalent investment grade credit rating from
any replacement rating agency or rating agencies selected by the Company under the circumstances
permitting the Company to select a replacement agency and in the manner for selecting a replacement
agency, in each case as set forth in the definition of Rating Agency.
Moodys means Moodys Investors Service, Inc., a subsidiary of Moodys Corporation, and its
successors.
Rating Agency means each of Moodys and S&P;
provided
, that if any of Moodys or S&P ceases
to provide rating services to issuers or investors, the Company may appoint another nationally
recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act as a replacement for such Rating Agency;
provided
, that the Company shall give
notice of such appointment to the Trustee.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
Voting Stock of any specified Person as of any date means the capital stock of such Person
that is at the time entitled to vote generally in the election of the board of directors of such
Person.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the
principal of the Notes of this series may (subject to the conditions set forth in the Indenture) be
declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the Companys obligations in
respect of (i) the entire indebtedness of this Note or (ii) certain restrictive covenants with
respect to this Note, in each case upon compliance with certain conditions set forth therein.
9
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Notes of each series to be affected under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain purposes, without the
consent of the Holders of any Notes at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate principal amount of the
Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place where the principal of
(and premium, if any) and interest on this Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or such Holders attorney duly authorized in writing, and thereupon
one or more new Notes of this series and of like tenor of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in denominations
of $2,000 and integral multiples of $1,000 above that amount. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Notes of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
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.
The Company will not be obligated to redeem or purchase the Notes pursuant to any sinking fund
or analogous provision. Sections 403 and 1009 of the Indenture relating to satisfaction, discharge
and defeasance shall apply to the Notes.
10
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name this Note is
registered in the Security Register as the owner hereof for all purposes, whether or not this Note
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
The Notes shall be governed by and construed in accordance with the laws of the State of New
York.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints
to transfer said Note on the books of the Trustee, with full power of substitution in the premises.
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Dated:
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NOTICE: The signature to this assignment must correspond
with the name as written upon the face of the within Note in
every particular, without alteration or enlargement or any
change whatsoever.
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