Exhibit 1.1
EXECUTION VERSION
LIFE TECHNOLOGIES CORPORATION
$800,000,000
3.50% Senior Notes due 2016
5.00% Senior Notes due 2021
UNDERWRITING
AGREEMENT
December 9, 2010
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
RBS SECURITIES INC.
Underwriting Agreement
December 9, 2010
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
RBS SECURITIES INC.
As Representatives of the several Underwriters
c/o
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, NY 10036
RBS SECURITIES INC.
600 Washington Blvd
Stamford, CT 06901
Ladies and Gentlemen:
Introductory.
Life Technologies Corporation, a Delaware corporation (the
Company
)
proposes to issue and sell to the several underwriters named in Schedule A (the
Underwriters
), acting severally and not jointly, the respective amounts set forth in such
Schedule A of $400,000,000 aggregate principal amount of the Companys 3.50% Senior Notes due 2016
(the
2016 Notes
) and $400,000,000 aggregate principal amount of the Companys 5.00%
Senior Notes due 2021 (the
2021 Notes
and, together with the 2016 Notes, the
Notes
). Merrill Lynch, Pierce, Fenner & Smith Incorporated and RBS Securities Inc. have
agreed to act as representatives of the several Underwriters (in such capacity, the
Representatives
) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of February 19, 2010 (the
Base Indenture
), between the Company and U.S. Bank National Association, as trustee (the
Trustee
). Certain terms of the Notes will be established pursuant to a supplemental
indenture to the Base Indenture (together with the Base Indenture, the
Indenture
). The
Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository
Trust Company (the
Depositary
), pursuant to a Letter of Representations, to be dated on
or before the Closing Date (as defined in Section 2 below) (the
DTC Agreement
), among the
Company, the Trustee and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
Commission
) a registration statement on Form S-3 (File No. 333-164823), which contains a
base prospectus (the
Base Prospectus
), to be used in connection with the public offering
and
sale of debt securities, including the Notes, of the Company under the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder (collectively, the
Securities
Act
), and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act. Such registration statement, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under the Securities Act, including any
required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B
under the Securities Act, is called the
Registration Statement
. The term
Prospectus
shall mean the final prospectus supplement relating to the Notes, together
with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time that
this Agreement is executed (the
Execution Time
) by the parties hereto. The term
Preliminary Prospectus
shall mean any preliminary prospectus supplement relating to the
Notes, together with the Base Prospectus, that is filed with the Commission pursuant to Rule
424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to
4:05 p.m. on December 9, 2010 (the
Initial Sale Time
). All references in this Agreement
to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or
supplements to any of the foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System (
EDGAR
).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the
Exchange Act
), which is or is deemed to be incorporated by reference
in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be,
after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1.
Representations and Warranties of the Company
The Company hereby represents, warrants and covenants to each Underwriter as of the date
hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a
Representation
Date
), as follows:
a)
Compliance with Registration Requirements.
The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are
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contemplated or threatened by the Commission, and any request on the part of the Commission
for additional information has been complied with. In addition, the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder (the
Trust Indenture Act
).
At the respective times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement and any amendments
thereto (i) complied and will comply in all material respects with the requirements of the
Securities Act and the Trust Indenture Act, and (ii) did not 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 not misleading. At the date of the Prospectus and at the
Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will
include an untrue statement of a material fact or omitted or will 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. Notwithstanding the foregoing, the representations and warranties
in this subsection shall not apply to (A) statements in or omissions from the Registration
Statement or any post-effective amendment or the Prospectus or any amendments or supplements
thereto made in reliance upon and in conformity with information furnished to the Company in
writing by any of the Underwriters through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter through the
Representatives consists of the information described as such in Section 8 hereof or (B) to the
part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of the Trustee.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC,
complied in all material respects with the Securities Act, and the Preliminary Prospectus and the
Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will,
at the time of such delivery, be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
b)
Disclosure Package.
The term
Disclosure Package
shall mean (i) the Preliminary
Prospectus dated December 9, 2010, (ii) the issuer free writing prospectuses as defined in Rule 433
of the Securities Act (each, an
Issuer Free Writing Prospectus
), if any, identified in
Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.
c)
Incorporated Documents
. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the
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Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or
will comply in all material respects with the requirements of the Exchange Act and (ii) when read
together with the other information in the Disclosure Package, at the Initial Sale Time, and when
read together with the other information in the Prospectus, at the date of the Prospectus and at
the Closing Date, did not or will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
d)
Company is a Well-Known Seasoned Issuer
. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes in
reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the
Company was and is a well known seasoned issuer as defined in Rule 405 of the Securities Act.
The Registration Statement is an automatic shelf registration statement, as defined in Rule 405
of the Securities Act, that automatically became effective not more than three years prior to the
Execution Time; the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form
and the Company has not otherwise ceased to be eligible to use the automatic shelf registration
form.
e)
Company is not an Ineligible Issuer
. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405
of the Securities Act), without taking account of any determination by the Commission pursuant to
Rule 405 of the Securities Act that it is not necessary that the Company be considered an
Ineligible Issuer.
f)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Preliminary Prospectus or the Prospectus the Company
has promptly notified or will promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity
with written information furnished to the Company by any Underwriter through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished
by any Underwriter through the Representatives consists of the information described as such in
Section 8 hereof.
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g)
Distribution of Offering Material By the Company.
The Company has not distributed and will
not distribute, prior to the later of the Closing Date and the completion of the Underwriters
distribution of the Notes, any offering material in connection with the offering and sale of the
Notes other than the Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex I
hereto or any electronic road show or other written communications reviewed and consented to by the
Representatives and listed on Annex II hereto (collectively,
Company Additional Written
Communication
). Each such Company Additional Written Communication, when taken together with
the Disclosure Package, did not, and at 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. The preceding
sentence does not apply to statements in or omissions from the Company Additional Written
Communication based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter through the Representatives consists of
the information described as such in Section 8 hereof.
h)
No Applicable Registration or Other Similar Rights.
There are no persons with registration
or other similar rights to have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by this Agreement, except for such
rights as have been duly waived.
i)
The Underwriting Agreement.
This Agreement has been duly authorized, executed and
delivered by the Company.
j)
Authorization of the Indenture
. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and, when executed and delivered by the
Company and the Trustee, will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general equitable principles.
k)
Authorization of the Notes.
The Notes to be purchased by the Underwriters from the Company
are in the form contemplated by the Indenture, have been duly authorized for issuance and sale
pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed
by the Company and, when authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or
by general equitable principles, and will be entitled to the benefits of the Indenture.
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l)
Description of the Notes and the Indenture.
The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
m)
Significant Subsidiaries
. The subsidiaries listed on Schedule B (
Significant
Subsidiaries
) attached hereto are the only significant subsidiaries of the Company (as
defined in Rule 1-02(10) of Regulation S-X).
n)
No Material Adverse Change
. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package, (i)
neither the Company nor any of its subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree and (ii) there has been no
material adverse change in the condition, financial or otherwise, or in the earnings, management,
business, properties, results of operations or prospects, whether or not arising from transactions
in the ordinary course of business, of the Company and its subsidiaries, considered as one entity
(any such change is called a
Material Adverse Change
).
o)
Independent Accountants.
Ernst &Young LLP, who have expressed their opinion with respect
to the Companys audited financial statements for the fiscal years ended December 31, 2009 December
31, 2008 and December 31, 2007 incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus, are independent public accountants with respect to the
Company as required by the Securities Act and the Exchange Act and are an independent registered
public accounting firm with the Public Company Accounting Oversight Board.
p)
Preparation of the Financial Statements.
The financial statements of the Company and
Invitrogen Corporation (
Invitrogen
), and, to the knowledge of the Company, the financial
statements of Applied Biosystems, Inc. (
Applied Biosystems
), together with the related
notes thereto included or incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly, the consolidated financial position of the Company
and its subsidiaries, Invitrogen and Applied Biosystems, as the case may be, as of and at the dates
indicated and the results of their operations and cash flows for the periods specified. Such
financial statements comply as to form with the accounting requirements of the Securities Act and
have been prepared in conformity with generally accepted accounting principles as applied in the
United States applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. The selected financial data and the summary
financial information included or incorporated by reference in the Preliminary Prospectus and the
Prospectus present fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included or incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Prospectus. In addition, the pro
forma financial statements and the related notes thereto included or incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Prospectus, present fairly the
information shown therein, have been prepared in accordance with the Commissions rules and
guidelines with respect to pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect
6
to the transactions and circumstances referred to therein. No other financial statements are
required to be included or incorporated by reference in the Registration Statement.
q)
Incorporation and Good Standing of the Company and its Subsidiaries.
Each of the Company
and its Significant Subsidiaries has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation and has
corporate power and authority to own or lease, as the case may be, and operate its properties and
to conduct its business as described in the Disclosure Package and the Prospectus and, in the case
of the Company, to enter into and perform its obligations under this Agreement. Each of the
Company and each subsidiary is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for such jurisdictions
where the failure to so qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. Except as disclosed in the Prospectus and the
Disclosure Package, all of the issued and outstanding shares of capital stock of each subsidiary
have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the
Company, directly or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim. The Company does not have any subsidiary not listed on Exhibit
21 to the Annual Report on Form 10-K for the year ended December 31, 2009 which is required to be
so listed.
r)
Capitalization and Other Capital Stock Matters.
The authorized, issued and outstanding
capital stock of the Company is as set forth in the Disclosure Package and the Prospectus under the
caption Capitalization (other than for subsequent issuances, if any, pursuant to employee benefit
plans described in the Disclosure Package and the Prospectus or upon exercise of outstanding
options, or upon conversion of outstanding convertible securities, in each case, as described in
the Disclosure Package and the Prospectus, as the case may be).
s)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required.
Neither the Company nor any of its Significant Subsidiaries is (i) in violation or in default (or,
with the giving of notice or lapse of time or both, would be in default) (
Default
) under
its charter, by-laws, or other organizational documents (ii) in Default under any indenture,
mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other
agreement, obligation, condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject (each, an
Existing
Instrument
) or (iii) in violation of any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its subsidiaries or any of its or their
properties, as applicable, except, with respect to clause (ii) only, for such Defaults as would
not, individually or in the aggregate result in a Material Adverse Change. The Companys
execution, delivery and performance of this Agreement and consummation of the transactions
contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been duly authorized
by all necessary action (corporate or otherwise) and will not result in any Default under the
charter, by-laws or other organizational documents of the Company or any subsidiary, (ii) will not
conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien, charge or encumbrance
7
upon any property or assets of the Company or any of its subsidiaries pursuant to, or require
the consent of any other party to, any Existing Instrument, and (iii) will not result in any
violation of any statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or any of
its subsidiaries or any of its or their properties, except, with respect to clause (ii) of this
sentence, for such Defaults, liens, charges, encumbrances, consents or violations as would not,
individually or in the aggregate, result in a Material Adverse Change. No consent, approval,
authorization or other order of, or registration or filing with, any court or other governmental or
regulatory authority or agency is required for the Companys execution, delivery and performance of
this Agreement or consummation of the transactions contemplated hereby, by the Disclosure Package
or by the Prospectus, except such as have been obtained or made by the Company and are in full
force and effect under the Securities Act, applicable state securities or blue sky laws and from
the Financial Industry Regulatory Authority (
FINRA
). As used herein, a
Debt
Repayment Triggering Event
means any event or condition which gives, or with the giving of
notice or lapse of time or both would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holders behalf) issued by the Company, including,
without limitation, any agreement (a) extending or shortening the indebtedness incurred thereunder
or contemplated thereby; (b) adding or deleting borrowers or guarantors thereunder; (c) increasing
the amount of indebtedness incurred thereunder; or (d) otherwise altering the terms and conditions
thereof) (the
Credit Agreement
), the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
t)
No Material Actions or Proceedings.
Except as disclosed in the Prospectus and the
Disclosure Package, there are no legal or governmental actions, suits or proceedings pending or, to
the best of the Companys knowledge, threatened (i) against or affecting the Company or any of its
subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned
or leased by, the Company or any of its subsidiaries or (iii) relating to environmental or
discrimination matters related to the Company or its subsidiaries, where any such action, suit or
proceeding, if determined adversely, could, individually or in the aggregate, result in a Material
Adverse Change or adversely affect the consummation of the transactions contemplated by this
Agreement.
u)
Labor Matters.
No material dispute with the employees of the Company or any of its
subsidiaries exists, and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or its subsidiaries principal suppliers, contractors or customers,
that could, individually or in the aggregate, result in a Material Adverse Change.
v)
Intellectual Property Rights.
Except as set forth in the Disclosure Package and the
Prospectus, to the Companys knowledge, the Company or its subsidiaries own or possess a valid
right to use all patents, trademarks, service marks, trade names, copyrights, patentable
inventions, trade secret, know-how and other intellectual property (collectively, the
Intellectual Property
) used by the Company or its subsidiaries in the conduct of the
Companys or its subsidiaries business as now conducted or as proposed in the Disclosure Package
and the Prospectus to be conducted, except where the failure to so own or have the right to use
such Intellectual Property would not, individually or in the aggregate, result in a Material
Adverse Change. Except as set forth in the Disclosure Package and the Prospectus, there is no
8
infringement by third parties of any of the Companys Intellectual Property and there are no
legal or governmental actions, suits, proceedings or claims pending or, to the Companys knowledge,
threatened, against the Company (i) challenging the Companys rights in or to any Intellectual
Property, (ii) challenging the validity or scope of any Intellectual Property owned by the Company,
or (iii) alleging that the operation of the Companys business as now conducted infringes or
otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of a
third party and which infringement, invalidity, inadequacy or violation would, individually or in
the aggregate, result in a Material Adverse Change, and the Company is unaware of any facts which
would form a reasonable basis for any such claim.
w)
All Necessary Permits, etc.
The Company and each Significant Subsidiary possess such valid
and current certificates, authorizations, permits, licenses, approvals, consents and other
authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor any Significant
Subsidiary has received any notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization, permit, license, approval, consent or
other authorization which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in a Material Adverse Change.
x)
Title to Properties.
Except as otherwise disclosed in the Disclosure Package and the
Prospectus, the Company and each of its subsidiaries has good and marketable title to all the
properties and assets reflected as owned in the financial statements referred to in Section 1(p)
above (or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of
any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the Company or such
subsidiary. The real property, improvements, equipment and personal property held under lease by
the Company or any subsidiary are held under valid and enforceable leases, with such exceptions as
are not material and do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or such subsidiary.
y)
Tax Law Compliance.
The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any taxes, assessments, fines or
penalties as may be being contested in good faith and by appropriate proceedings, except where a
default to make such filings or payments would not result in a Material Adverse Change.
z)
Company Not an Investment Company.
The Company is not, and after receipt of payment for
the Notes and the application of the proceeds thereof as contemplated under the caption Use of
Proceeds in the Preliminary Prospectus and the Prospectus will not be, required to register as an
investment company within the meaning of the Investment Company Act of 1940, as amended (the
Investment Company Act
).
aa)
No Price Stabilization or Manipulation.
The Company has not taken and will not take,
directly or indirectly, any action designed to or that would be reasonably expected to cause
9
or result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes.
bb)
Related Party Transactions.
There are no business relationships or related-party
transactions involving the Company or any subsidiary or any other person required to be described
in the Preliminary Prospectus or the Prospectus that have not been described as required.
cc)
No Unlawful Contributions or Other Payments.
None of the Company, any of its subsidiaries
or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the FCPA, including, without limitation, making
use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any foreign
official (as such term is defined in the FCPA) or any foreign political party or official thereof
or any candidate for foreign political office, in contravention of the FCPA, and the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and procedures designed to
ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
FCPA
means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
dd)
No Conflict with Money Laundering Laws.
The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects 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 applicable
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 knowledge of the
Company, threatened.
ee)
No Conflict with OFAC Laws.
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (
OFAC
); and the Company will not
directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds, to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
ff)
Compliance with Environmental Laws.
Except as otherwise disclosed in the Disclosure
Package and the Prospectus, (i) neither the Company nor any of its subsidiaries is in
10
violation of any federal, state, local or foreign law, regulation, order, permit or other
requirement relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws, regulations, orders, permits or requirements relating
to Releases or threatened Releases of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances or materials, or petroleum and petroleum products, by-products or
breakdown products, asbestos-containing materials or polychlorinated byphenyls (collectively,
Materials of Environmental Concern
), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of, or exposure
to, Materials of Environment Concern (collectively,
Environmental Laws
), which violation
includes, but is not limited to, noncompliance with any permits or other governmental
authorizations under applicable Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received any written communication, whether
from a governmental authority, citizens group, employee or otherwise, that alleges that the Company
or any of its subsidiaries is in violation of, or has any liability under, any Environmental Law,
except as would not, individually or in the aggregate, result in a Material Adverse Change; (ii)
there is no claim, action or cause of action filed with a court or governmental authority, no
investigation with respect to which the Company has received written notice, and no written notice
by any person or entity alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages, personal injuries,
attorneys fees or penalties arising out of, based on or resulting from the presence, or Release
into the environment, of any Material of Environmental Concern at, to or sent from any location
occupied, used, owned, leased or operated by the Company or any of its subsidiaries, now or in the
past (collectively,
Environmental Claims
), pending or, to the best of the Companys
knowledge, threatened against the Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law, except as would not, individually or in the
aggregate, result in a Material Adverse Change; and (iii) to the best of the Companys knowledge,
there are no past, present or anticipated future actions, activities, circumstances, conditions,
events or incidents, including, without limitation, the Release or threatened Release of any
Material of Environmental Concern, that reasonably could result in a violation of any Environmental
Law, require expenditures to be incurred pursuant to Environmental Law, or form the basis of a
potential Environmental Claim against the Company or any of its subsidiaries or against any person
or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law, except as would not, individually
or in the aggregate, result in a Material Adverse Change.
Release
means any releasing,
spilling, emitting, escaping, seeping, discharging, depositing, disposing, leaking, pumping,
pouring, dumping, emptying, injecting or leaching into or upon any water, land or air or otherwise
entering the environment.
gg)
Periodic Review of Costs of Environmental Compliance
. In the ordinary course of its
business, the Company conducts a periodic review of the effect of Environmental Laws on the
business, operations, products and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of such review
11
and the amount of its established reserves, the Company has reasonably concluded that such
associated costs and liabilities would not, individually or in the aggregate, reasonably expected
to result in a Material Adverse Change.
hh)
ERISA Compliance.
The Company and its subsidiaries and any employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
ERISA
)) established
or maintained by the Company, its subsidiaries or their ERISA Affiliates (as defined below) are in
compliance in all material respects with ERISA.
ERISA Affiliate
means, with respect to
the Company or a subsidiary, any member of any group of organizations described in Sections 414(b),
(c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the
Internal Revenue
Code
), of which the Company or such subsidiary is a member. No reportable event (as defined
under ERISA) has occurred or is reasonably expected to occur with respect to any employee benefit
plan established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates,
except as would not, individually or in the aggregate, result in a Material Adverse Change. No
employee benefit plan established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such employee benefit plan were terminated, would have any amount of
unfunded benefit liabilities (as defined under ERISA), except as would not, individually or in the
aggregate, result in a Material Adverse Change. Neither the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any employee benefit plan, (ii)
Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the Internal
Revenue Code with respect to the excise tax imposed thereunder, except, in each case, as would not,
individually or in the aggregate, result in a Material Adverse Change. Each employee benefit
plan established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service and nothing has occurred, whether
by action or failure to act, which is reasonably likely to cause disqualification of any such
employee benefit plan under Section 401(a) of the Internal Revenue Code, except as would not,
individually or in the aggregate, result in a Material Adverse Change.
ii)
Sarbanes-Oxley Compliance
. There is and has been no failure on the part of the Company
and any of the Companys directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the
Sarbanes-Oxley Act
), including Section 402 related to loans and Sections
302 and 906 related to certifications.
jj)
Companys Accounting System.
The Company and its subsidiaries maintain effective internal
control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act.
kk)
Internal Controls and Procedures.
The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with managements general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (C) access to assets is
12
permitted only in accordance with managements general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
ll)
No Material Weakness in Internal Controls.
Except as disclosed in the Disclosure Package
and the Prospectus or in any document incorporated by reference therein, since the end of the
Companys most recent audited fiscal year, there has been (i) no material weakness in the Companys
internal control over financial reporting (whether or not remediated) and (ii) no change in the
Companys internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Companys internal control over financial reporting.
mm) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Companys principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
nn)
Accuracy of Exhibits
. There are no franchises, contracts or documents which are required
to be described in the Registration Statement, the Disclosure Package, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits to the Registration
Statement which have not been so described and filed as required.
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
Section 2.
Purchase, Sale and Delivery of the Notes.
a)
The Notes.
The Company agrees to issue and sell to the several Underwriters, severally and
not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company the aggregate principal amount of Notes set forth opposite their names on Schedule A at
a purchase price of 99.140% of the principal amount of the 2016 Notes and 98.756% of the principal
amount of the 2021 Notes, payable on the Closing Date.
b)
The Closing Date.
Delivery of certificates for the Notes in global form to be purchased by
the Underwriters and payment therefor shall be made at the offices of Shearman & Sterling LLP, 599
Lexington Avenue, New York, NY 10022 (or such other place as may be agreed to by the Company and
the Representatives) at 9:00 a.m., New York City time, on December 14, 2010, or such other time and
date as the Underwriters and the Company shall mutually agree (the time and date of such closing
are called the
Closing Date
).
c)
Public Offering of the Notes.
The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
13
d)
Payment for the Notes.
Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
e)
Delivery of the Notes.
The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters certificates in global form through
the facilities of the Depositary for the Notes at the Closing Date, against the irrevocable release
of a wire transfer of immediately available funds for the amount of the purchase price therefor.
The certificates for the Notes shall be in such denominations and registered in such names and
denominations as the Representatives shall have requested at least two full business days prior to
the Closing Date and shall be made available for inspection on the business day preceding the
Closing Date at a location in New York City, as the Representatives may designate. Time shall be
of the essence, and delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
Section 3.
Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
a)
Compliance with Securities Regulations and Commission Requests.
The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will
promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness
during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus
or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus
Delivery Period, (iii) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for
additional information, and (iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of the
Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes
for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule
424 within the time period specified by Rule 424 and will take such steps as it deems necessary to
ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing
under Rule 424 was received for filing by the Commission and, in the event that it was not, it will
promptly file such document. The Company will use its reasonable best efforts to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
14
b)
Filing of Amendments.
During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Securities Act (the
Prospectus Delivery Period
),
the Company will give the Representatives notice of its intention to file or prepare any amendment
to the Registration Statement, or any amendment, supplement or revision to the Disclosure Package
or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will
furnish the Representatives with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably object.
c)
Delivery of Registration Statements.
The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.
The Registration Statement and each amendment thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
d)
Delivery of Prospectuses.
The Company will deliver to each Underwriter, without charge, as
many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e)
Continued Compliance with Securities Laws
. The Company will comply with the Securities Act
and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the opinion of either such
15
counsel, at any such time to amend the Registration Statement or amend or supplement the
Disclosure Package or the Prospectus in order to comply with the requirements of any law, the
Company will (1) notify the Representatives of any such event, development or condition and (2)
promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make the Registration
Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will
furnish to the Underwriters, without charge, such number of copies of such amendment or supplement
as the Underwriters may reasonably request.
f)
Blue Sky Compliance.
The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company shall
not be required to qualify to transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
g)
Use of Proceeds.
The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption Use of Proceeds in the Preliminary Prospectus and
the Prospectus.
h)
Depositary.
The Company will cooperate with the Underwriters and use its best efforts to
permit the Notes to be eligible for clearance and settlement through the facilities of the
Depositary.
i)
Periodic Reporting Obligations.
During the Prospectus Delivery Period, the Company shall
file, on a timely basis, with the Commission and the Nasdaq Stock Market all reports and documents
required to be filed under the Exchange Act.
j)
Agreement Not to Offer or Sell Additional Securities.
During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without the prior written consent
of the Representatives (which consent may be withheld at the sole discretion of the
Representatives), directly or indirectly, sell, offer, contract or grant any option to sell,
pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1(h)
under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file
any registration statement under the Securities Act in respect of, any debt securities of the
Company similar to the Notes or securities exchangeable for or convertible into debt securities
similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
16
k)
Final Term Sheet
. The Company will prepare a final term sheet containing only a
description of the Notes, in a form approved by the Underwriters and attached as Exhibit B hereto,
and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time
required by such rule (such term sheet, the
Final Term Sheet
). Any such Final Term Sheet
is an Issuer Free Writing Prospectus for purposes of this Agreement.
l)
Permitted Free Writing Prospectuses
. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make,
any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a free writing prospectus (as defined in Rule 405 of the Securities
Act) required to be filed by the Company with the Commission or retained by the Company under Rule
433 of the Securities Act; provided that the prior written consent of the Representatives shall be
deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to
this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the
Representatives is hereinafter referred to as a
Permitted Free Writing Prospectus
. The
Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping. The Company consents to the use by any Underwriter of a free writing
prospectus that (a) is not an issuer free writing prospectus as defined in Rule 433, and (b)
contains only (i) information describing the preliminary terms of the Notes or their offering, (ii)
information permitted by Rule 134 under the Securities Act or (iii) information that describes the
final terms of the Notes or their offering and that is included in the Final Term Sheet of the
Company contemplated in Section 3(k).
m)
Notice of Inability to Use Automatic Shelf Registration Statement Form
. If at any time
during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating to the Notes, in a
form satisfactory to the Representatives, (iii) use its best efforts to cause such registration
statement of post-effective amendment to be declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Notes to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company
has otherwise become ineligible. References herein to the Registration Statement shall include
such new registration statement or post-effective amendment, as the case may be.
n)
Filing Fees
. The Company agrees to pay the required Commission filing fees relating to the
Notes within the time required by and in accordance with Rule 456(b)(1) and 457I of the Securities
Act.
o)
No Manipulation of Price.
The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be expected to
17
constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any securities of the Company to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4.
Payment of Expenses.
The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all expenses incident
to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the
Notes, (iii) all fees and expenses of the Companys counsel, independent public or certified public
accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection
with the preparation, printing, filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and certificates of experts), each
Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments
and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v)
all filing fees, reasonable attorneys fees and expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state
securities or blue sky laws, and, if requested by the Representatives, preparing a Blue Sky
Survey or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by
the FINRA of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with
the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of
counsel) of the Company in connection with approval of the Notes by the Depositary for book-entry
transfer, (x) the costs and expenses of the Company relating to investor presentations on any road
show undertaken in connection with the marketing of the Notes, including without limitation,
expenses associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and lodging expenses of
the representatives and officers of the Company and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show, (xi) all other fees, costs
and expenses referred to in Item 14 of Part II of the Registration Statement, and (xii) all other
fees, costs and expenses incurred in connection with the performance of its obligations hereunder
for which provision is not otherwise made in this Section. Except as provided in this Section 4
and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees
and disbursements of their counsel.
Section 5.
Conditions of the Obligations of the Underwriters.
The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the
18
Closing Date as though then made and to the timely performance by the Company of its covenants
and other obligations hereunder, and to each of the following additional conditions:
a)
Effectiveness of Registration Statement
. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the
automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall
have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective
amendment providing such information shall have been filed and declared effective in accordance
with the requirements of Rule 430A).
b)
Accountants Comfort Letter.
On the date hereof, the Representatives shall have received
from Ernst & Young LLP, independent registered public accountants for the Company, a letter dated
the date hereof addressed to the Underwriters, in form and substance satisfactory to the
Representatives with respect to the audited and unaudited financial statements and certain
financial information contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus.
c)
Bring-down Comfort Letter
. On the Closing Date, the Representatives shall have received
from Ernst & Young LLP, independent registered public accountants for the Company, a letter dated
such date, in form and substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this
Section 5, except that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the Closing Date.
d)
No Objection.
If the Registration Statement and/or the offering of the Notes has been
filed with the FINRA for review, the FINRA shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
e)
No Material Adverse Change or Ratings Agency Change.
For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any nationally recognized
statistical rating organization as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
19
f)
Opinion of Counsel for the Company.
On the Closing Date, the Representatives shall have
received the favorable opinion, dated as of such Closing Date, of (1) DLA Piper LLP (US), counsel
for the Company, the form of which is attached as Exhibit A.
g)
Opinion of Counsel for the Underwriters.
On the Closing Date, the Representatives shall
have received the favorable opinion of Shearman & Sterling LLP, counsel for the Underwriters, dated
as of such Closing Date, with respect to such matters as may be reasonably requested by the
Underwriters.
h)
Officers Certificate.
On the Closing Date, the Representative shall have received a
written certificate executed by the Chairman of the Board or the Chief Executive Officer or a
Senior Vice President of the Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or
threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration
statement form;
(iii) the representations, warranties and covenants of the Company set forth in
Section 1 of this Agreement are true and correct with the same force and effect as though
expressly made on and as of such Closing Date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
i)
Additional Documents.
On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6.
Reimbursement of Underwriters Expenses.
If this Agreement is terminated
by the Representatives pursuant to Section 5, 10, 11(i) or 11(iv), or if the sale to the
Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Representatives and the other Underwriters
(or
20
such Underwriters as have terminated this Agreement with respect to themselves), severally,
upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the
Representatives and the Underwriters in connection with the proposed purchase and the offering and
sale of the Notes, including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges.
Section 7.
Effectiveness of this Agreement.
This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8.
Indemnification.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless
each Underwriter, its directors, officers, employees and agents, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director,
officer, employee, agent or controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Company Additional
Written Communication, any Issuer Free Writing Prospectus, the Disclosure Package, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and to reimburse each
Underwriter and each such director, officer, employee, agent and controlling person for any and all
expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives)
as such expenses are reasonably incurred by such Underwriter or such director, officer, employee,
agent or controlling person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however
, that the
foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement, any Company Additional Written Communication, any
Issuer Free Writing Prospectus, the Disclosure Package, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this
Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b)
Indemnification of the Company, its Directors and Officers.
Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any
21
loss, claim, damage, liability or expense, as incurred, to which the Company or any such
director, officer or controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent
of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement, or any
amendment thereto, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Company Additional
Written Communication, any Issuer Free Writing Prospectus, the Disclosure Package, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Company Additional Written
Communication, any Issuer Free Writing Prospectus, the Disclosure Package, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and to reimburse the Company, or any such director,
officer or controlling person for any legal and other expense reasonably incurred by the Company,
or any such director, officer or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability, expense or action. The
Company hereby acknowledges that the only information furnished to the Company by any Underwriter
through the Representatives expressly for use in the Registration Statement, any Company Additional
Written Communication, any Issuer Free Writing Prospectus, the Disclosure Package, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth
in the fifth and eighth paragraphs and the third sentence of the seventh paragraph under the
caption Underwriting in the Prospectus. The indemnity agreement set forth in this Section 8(b)
shall be in addition to any liabilities that each Underwriter may otherwise have.
(c)
Notifications and Other Indemnification Procedures.
Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written notice delivered to the
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, such indemnified party shall have the right to employ its own
counsel in any such action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party, unless:
22
(i) the employment of such counsel has been expressly authorized in writing by the
indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and
employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any
such action (including any impleaded parties) include both such indemnified party and the
indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall
have reasonably concluded that either (x) there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying party or such
affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and
the indemnifying party or such affiliate of the indemnifying party (it being understood, however,
that the indemnifying party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which
firm shall be designated in writing by the Representatives and that all such reasonable fees and
expenses shall be reimbursed as they are incurred). Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying partys election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless the indemnified
party shall have employed separate counsel in accordance with the proviso to the next preceding
sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d)
Settlements.
The indemnifying party under this Section 8 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 party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it
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 such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section 9.
Contribution.
If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each
23
indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (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 hand, from the
offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or expenses, 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 hand, in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses)
received by the Company, and the total underwriting discount received by the Underwriters, in each
case as set forth on the front cover page of the Prospectus bear to the aggregate initial public
offering price of the Notes as set forth on such cover. The relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the Company, on the
one hand, or the Underwriters, on the other hand, and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. 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 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company.
24
Section 10.
Default of One or More of the Several Underwriters.
If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal
amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate
principal amount of such Notes with respect to which such default occurs exceeds 10% of the
aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Notes are not made within 48 hours
after such default, this Agreement shall terminate without liability of any party to any other
party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and
shall survive such termination. In any such case, either the Representatives or the Company shall
have the right to postpone the Closing Date, but in no event for longer than seven days in order
that the required changes, if any, to the Registration Statement, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may
be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11.
Termination of this Agreement.
Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Companys securities shall have been suspended or limited by
the Commission or the Nasdaq Stock Market, or trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum or
maximum prices shall have been generally established on any of such stock exchanges by the
Commission or the FINRA; (ii) a general banking moratorium shall have been declared by any of
federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity involving the United States, or any
change in the United States or international financial markets, or any substantial change or
development involving a prospective substantial change in United States or international
political, financial or economic conditions, as in the judgment of the Representatives is material
and adverse and makes it impracticable or inadvisable to offer or deliver the Notes in the manner
and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for
the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any
Material Adverse Change; or (v) there shall have occurred a material disruption in commercial
banking or securities settlement or clearance services. Any termination pursuant to this Section 11
shall be without liability of any party to
25
any other party except as provided in Sections 4 and 6 hereof, and provided further that
Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
Section 12
.
No Fiduciary Duty
. The Company acknowledges and agrees that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arms-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of the Company and that
the several Underwriters have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it
deemed appropriate; any review by the Underwriters of the Company, the transactions contemplated
hereby or the 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 a fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject matter hereof. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
Section 13.
Representations and Indemnities to Survive Delivery.
The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will
remain operative and in full force and effect, regardless of any (A) investigation, or statement as
to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any
Underwriter, or any person controlling the Underwriter, the Company, the officers or employees of
the Company, or any person controlling the Company, as the case may be or (B) acceptance of the
Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes
sold hereunder and any termination of this Agreement.
26
Section 14.
Notices.
All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
NY1-100-18-03
New York, NY 10036
Facsimile: 646-855-5958
Attention: High Grade Transaction Management/Legal
and
RBS Securities Inc.
600 Washington Blvd
Stamford, CT 06901
Facsimile: 203-873-4534
Attention: Debt Capital Markets Syndicate
with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Facsimile: 646-848-4813
Attention: Michael J. Schiavone
If to the Company:
Life Technologies Corporation
5791 Van Allen Way
Carlsbad, CA 92008
Facsimile: 760-602-6632
Attention: David L. Szekeres, Head Counsel, M&A, Governance & Securities and Assistant
Secretary
with a copy to:
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, NY 10020
Facsimile: 212-884-8692
Attention: Jamie Knox, Esq.
27
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15.
Successors.
This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term successors shall not include any purchaser of the Notes
as such from any of the Underwriters merely by reason of such purchase.
Section 16.
Partial Unenforceability.
The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17.
Governing Law Provisions.
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE. The Company and each of the Underwriters
agree that any suit or proceeding arising in respect of this agreement or our engagement will be
tried exclusively in the U.S. District Court for the Southern District of New York or, if that
court does not have subject matter jurisdiction, in any state court located in The City and County
of New York and the Company and each of the Underwriters agree to submit to the jurisdiction of,
and to venue in, such courts.
Section 18.
General Provisions.
This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Section
19.
Waiver of Trial by Jury.
The Company and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
Section
20.
Tax Treatment.
Notwithstanding anything herein to the contrary, the
Company is authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax
opinions and other tax analyses) provided to the Company relating to that treatment and structure,
without the Underwriters, imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
28
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, tax structure is limited to any facts that may be relevant to that treatment.
Section
21.
Business Day.
Time shall be of the essence of this Agreement. As used
herein, the term business day shall mean any day when the Commissions office in Washington, D.C.
is open for business.
Section
22.
Patriot Act Acknowledgement.
In accordance with the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the underwriters
are required to obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address of their respective
clients, as well as other information that will allow the underwriters to properly identify their
respective clients.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
29
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
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Very truly yours,
LIFE TECHNOLOGIES CORPORATION
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|
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By:
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/s/
David H. Smith
|
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Name:
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David H. Smith
|
|
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Title:
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Treasurer
|
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Underwriting Agreement
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
RBS SECURITIES INC.
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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By:
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/s/
Doug Muller
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Name:
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Doug Muller
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Title:
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Managing Director
|
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RBS Securities Inc.
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|
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By:
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/s/
Moshe Tomkiewicz
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Name:
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Moshe Tomkiewicz
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Title:
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Managing Director
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Underwriting Agreement
SCHEDULE A
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Aggregate Principal Amount
|
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Aggregate Principal Amount
|
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Underwriters
|
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of 2016 Notes to be Purchased
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|
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of 2021 Notes to be Purchased
|
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
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$
|
144,000,000
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|
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$
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144,000,000
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RBS Securities Inc.
|
|
|
104,000,000
|
|
|
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104,000,000
|
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Mitsubishi UFJ Securities (USA), Inc.
|
|
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48,000,000
|
|
|
|
48,000,000
|
|
Citigroup Global Markets Inc.
|
|
|
28,000,000
|
|
|
|
28,000,000
|
|
DnB NOR Markets, Inc.
|
|
|
28,000,000
|
|
|
|
28,000,000
|
|
Goldman, Sachs & Co.
|
|
|
14,000,000
|
|
|
|
14,000,000
|
|
J.P. Morgan Securities LLC
|
|
|
14,000,000
|
|
|
|
14,000,000
|
|
U.S. Bancorp Investments, Inc.
|
|
|
14,000,000
|
|
|
|
14,000,000
|
|
Moelis & Company LLC
|
|
|
6,000,000
|
|
|
|
6,000,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
400,000,000
|
|
|
$
|
400,000,000
|
|
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Sch-A
SCHEDULE B
Applied Biosystems, LLC (Delaware)
Applied Biosystems International, Inc (Delaware)
Molecular Probes, Inc. (Oregon)
Life Technologies Japan Ltd (Japan)
Applied Biosystems Asia Pte Ltd (Singapore)
Sch-B
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated December 9, 2010, a copy of which is filed with the Commission as a free
writing prospectus pursuant to Rule 433.
Annex-I
ANNEX II
Company Additional Written Communication
[NONE]
Annex-II
EXHIBIT A
[Form of Opinion of Issuers Counsel]
[INSERT LETTERHEAD]
December 14, 2010
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
RBS SECURITIES INC.
As Representatives of the several Underwriters
c/o
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, NY 10036
RBS SECURITIES INC.
600 Washington Blvd
Stamford, CT 06901
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Re:
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3.50% Senior Notes Due 2016 of Life Technologies
Corporation
5.00% Senior Notes Due 2021 of Life Technologies Corporation
|
Ladies and Gentlemen:
We have acted as counsel to Life Technologies Corporation, a Delaware corporation (the
Company
), in connection with the issuance and sale by the Company of $400,000,000
aggregate principal amount of the Companys 3.50% Senior Notes due 2016 (the
2016 Notes
) and
$400,000,000 aggregate principal amount of the Companys 5.00% Senior Notes due 2021 (the
2021
Notes
and, together with the 2016 Notes, the
Notes
). The Notes will be issued pursuant
to an indenture (the
Base Indenture
) dated February 19, 2010 by and between the Company
and U.S. Bank National Association, as trustee (the
Trustee
). Certain terms of the Notes
will be established pursuant to a supplemental indenture under the Base Indenture (the
Supplemental Indenture
and, together with the Base Indenture, the
Indenture
).
The Notes and the Indenture are described in the Registration Statement on Form S-3 (the
Registration Statement
), in the form in which it was filed with the Securities and
Exchange Commission (the
Commission
) under the Securities Act of 1933, as amended (the
Act
), including the Preliminary Prospectus and the Prospectus.
A-1
This opinion is furnished pursuant to Section 5(f) of the Underwriting Agreement dated December 9,
2010 (the
Underwriting Agreement
), by and between the Company and Merrill Lynch, Pierce,
Fenner & Smith Incorporated and RBS Securities Inc. as representatives of the several underwriters
named in Schedule A thereto (the
Underwriters
). Capitalized terms used herein that are
not defined shall have the respective meanings given them in the Underwriting Agreement.
A.
Documents
. We have examined such documents as we have deemed advisable or necessary
for the purpose of rendering this opinion, including the following:
(A) the Registration Statement on Form S-3 (File No. 333-164823), as filed by the Company with
the Commission on February 10, 2010, for the purpose of registering the Notes under the Act, and
the documents and information incorporated or deemed incorporated by reference therein;
(B) the Preliminary Prospectus, as filed by the Company with the Commission on December 9,
2010 pursuant to Rule 424(b)(3) of the rules and regulations of the Commission promulgated under
the Act;
(C) the Companys issuer free writing prospectus, as filed by the Company with the Commission
on December 9, 2010 pursuant to Rule 433 of the rules and regulations of the Commission promulgated
under the Act;
(D) the Prospectus, as filed by the Company with the Commission on December 9, 2010 pursuant
to Rule 424(b)(5) of the rules and regulations of the Commission promulgated under the Act;
(E) the Base Indenture;
(F) the Supplemental Indenture;
(G) the Restated Certificate of Incorporation of the Company, as filed with the Secretary of
State of the State of Delaware on May 3, 2010 (the
Certificate
);
(H) the Sixth Amended and Restated Bylaws of the Company, as certified by the Companys
Assistant Secretary on the date hereof (the
Bylaws
);
(I) certified copies of the certificates of incorporation, by-laws, certificates of formation
and operating agreements, as applicable (the
Organizational Documents
) of each of the
entities listed on
Schedule 1
hereto the (
Subsidiary Opinion
Parties
)
1
;
(J) the stock records and minute books of the Company that were made available to us by the
Company;
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1
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NTD: The schedule of Subsidiary Opinion
Parties will cover those Significant Subsidiaries organized in jurisdictions
where DLA Piper practices law.
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A-2
(K) executed counterparts of the Underwriting Agreement, the Base Indenture, the Supplemental
Indenture and a specimen of each of the Notes;
(L) the certificates of various corporate officers of the Company of even date herewith
delivered by the Company to you pursuant to the Underwriting Agreement;
(M) the Certificate of Good Standing of the Secretary of State of the State of Delaware with
respect to the Company, dated December 8, 2010;
(N) the other closing documents delivered by the Company and the Underwriters on the date
hereof;
(O) the material contracts, as amended through the date of the Underwriting Agreement, listed
on Sections 4 and 10 of the exhibit index to the Companys Annual Report on Form 10-K, as amended,
for the fiscal year ended December 31, 2009, and to the Companys Quarterly Reports on Form 10-Q
for the fiscal quarters ended March 31, 2010, June 30, 2010
and September 30, 2010 (collectively,
the
Material Contracts
);
(P) certified copies of certain resolutions adopted by the Board of Directors of the Company
relating to the transactions contemplated by the Underwriting Agreement; and
(Q) an Officers Certificate delivered by the Company in connection with our rendering this
opinion (the
Officers Certificate
).
As to factual matters, subject to the further limitations on the scope of our review and
inquiry set forth below, we have relied solely upon an examination, and have assumed the accuracy,
completeness and genuineness, of the documents (or other confirmatory statements) listed or
identified in paragraphs (A) through (Q) above. We have not undertaken independently to verify the
accuracy of the facts set forth in such certificates, documents and representations.
B.
Assumptions
. We have assumed: (i) the genuineness and authenticity of all
documents submitted to us as originals; (ii) the conformity to genuine, authentic originals of all
documents submitted to us as copies; (iii) the legal competence of all individuals executing
documents; and (iv) the due authorization, execution and delivery of all documents by any party
other than the Company when due authorization, execution and delivery are a prerequisite to the
effectiveness thereof. To the extent that the Companys obligations under the Indenture or the
Notes may be dependent upon such matters, we have also assumed that: (i) the Trustee under the
Indenture has been duly organized, is validly existing and is in good standing under the laws of
its jurisdiction of organization; (ii) the Trustee is duly qualified to engage in the activities
contemplated by the Indenture; (iii) the Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes a legally valid, binding and enforceable obligation of the Trustee
enforceable against the Trustee in accordance with its terms; and (iv) the Trustee is in
compliance, generally and with respect to acting as trustee under the Indenture, with all
applicable laws and regulations.
With respect to our opinions in Paragraphs 1 and 2 to the effect that each of the Company and the
Subsidiary Opinion Parties is validly existing as a corporation under the laws of its jurisdiction
of incorporation or formation and duly qualified as a foreign corporation or limited liability
company, partnership or other entity to transact business in the jurisdictions set forth on
A-3
Schedules 2 and 3, we have relied solely upon the certificates of public officials of such
jurisdictions.
With respect to our opinions in Paragraph 7, we have assumed that the statements made in the
Registration Statement, the Preliminary Prospectus and the Prospectus and any further amendments
and supplements referenced therein are correct and complete.
With respect to our opinions in Paragraph 8, we have assumed that the proceeds from the sale of the
Notes are applied in the manner contemplated by the Registration Statement, the Preliminary
Prospectus and the Prospectus.
With respect to our opinion in Paragraph 8 regarding consent, approval, authorization,
registration, filing or qualification, and with respect to violation of federal or state statutes,
rules or regulations, we have not conducted any special investigation of laws or regulations, and
our opinion with respect thereto is limited to such laws of the United States, the State of New
York and the General Corporation Law of the State of Delaware and their rules and regulations as in
our experience are of general application to transactions of the sort contemplated by the
Underwriting Agreement.
We express no opinion as to the effect on the opinions herein stated of the legal or regulatory
status or nature of the Underwriters, and have assumed the compliance of the Underwriters with all
state, federal or other laws or regulations applicable to them.
C.
Limitation as to Specific Laws
. We express no opinion concerning: (i) any laws, other
than with respect to the laws of the State of New York, the General Corporation Law of the State of
Delaware and the federal law of the United States; and (ii) any questions of choice of law, choice
of venue or conflict of laws.
D.
Opinions
. Based upon our examination of the foregoing, in reliance thereon, and
subject thereto, we are of the opinion that, as of the date hereof:
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1.
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The Company is validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to enter into the Underwriting
Agreement and perform its obligations thereunder, and to own or lease, as the case may be,
and operate its properties and to conduct its business as described in the Disclosure
Package and the Prospectus; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction set forth on
Schedule
2
;
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2.
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Each of the Subsidiary Opinion Parties has been duly incorporated or formed and are
validly existing as a corporation, limited liability company, partnership or other legal
entity in good standing under the laws of the jurisdiction of its incorporation or
formation, and each has corporate, limited liability company, partnership or other power
and authority to own or lease, as the case may be, and operate its properties and to
conduct its business as described in the Disclosure Package and the Prospectus; each
Subsidiary Opinion Party is duly qualified as a foreign corporation, limited liability
company, partnership or other entity to transact business and is in good standing in each
jurisdiction set forth opposite its name on
Schedule 3
;
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3.
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The Underwriting Agreement has been duly authorized, executed and delivered by the
Company;
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4.
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The Indenture has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and, assuming the due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and binding agreement,
enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting
creditors rights and to general equity principles;
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5.
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The Notes are in the form contemplated by the Indenture, have been duly authorized and
executed by the Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price as specified in the Underwriting
Agreement, will constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting creditors
rights and to general equity principles and will be entitled to the benefits of the
Indenture;
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6.
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The statements set forth in the Preliminary Prospectus and the Prospectus under the
captions (i) Description of Notes, insofar as they purport to constitute a summary of the
terms of the Notes and the Indenture, and (ii) Material United States Federal Income Tax
Consequences, insofar as such statements constitute a summary of the legal matters
referred to therein, are accurate descriptions or summaries in all material respects;
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7.
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The Registration Statement, the Preliminary Prospectus and the Prospectus, in each
case, including the documents incorporated therein by reference, and any further amendments
and supplements thereto, as applicable, made by the Company prior to the Closing Date
(other than the exhibits, financial statements and related schedules and other financial
data included therein, as to which we express no opinion) comply as to form in all material
respects with the requirements of the Act, the Exchange Act and the Trust Indenture Act and
the rules and regulations thereunder; it being understood, however, we express no view with
respect to Regulation S-T promulgated under the Act;
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8.
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The issue and sale of the Notes by the Company pursuant to the Underwriting Agreement
and the execution, delivery and performance of the Underwriting Agreement and the Indenture
and the consummation of the transactions therein contemplated do not: (i) result in a
breach of, a default under, the acceleration of indebtedness under, or the imposition of a
lien or security interest under any Material Contract; (ii) result in any violation of the
provisions of the Certificate or Bylaws, in each case as currently in effect; (iii) violate
the General Corporation Law of the State of Delaware or any federal or New York statute,
rule or regulation applicable to the Company; or (iv) require any consent, approval or
authorization to be obtained by the Company from, or any registrations, filings or
qualifications to be made by the Company with, any governmental agency or body under the
General Corporation Law of the State of Delaware or any federal or New York statute, rule
or regulation applicable to the Company except as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations, registrations, filings or
qualifications as may be required under state securities or Blue
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A-5
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Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
and
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9.
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The Company is not, and after receipt of payment for the Notes and the application of
the proceeds thereof as contemplated under the caption Use of Proceeds in the Preliminary
Prospectus and the Prospectus will not be an investment company within the meaning of the
Investment Company Act.
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E.
Qualifications
. Notwithstanding any other provision hereof, the opinions herein above
expressed are subject to the following qualifications:
(A) The effect of the general principles of equity, including, but not limited to, concepts of
materiality, reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief (regardless of whether such remedy is considered in a
proceeding in equity or at law).
(B) The effect of statutory law and judicial decisions that limit enforcement of an
exculpatory or indemnity provision, including, without limitation, limitations on the enforcement
of provisions that encompass indemnification or exculpation with respect to: (i) the negligence or
willful misconduct of the party seeking relief or of any person for whom said party is legally
responsible; (ii) violations of law by the party seeking relief or by any person for whom said
party is legally responsible; or (iii) matters found to be contrary to statute or public policy.
(C) The effect of judicial decisions and statutory law restricting enforcement of certain
covenants and the availability of specific performance or any other remedy of a lender, if the
violation of a covenant or the breach of a warranty is not material or if the action is not
undertaken in good faith under the then-existing circumstances.
(D) The effect of judicial decisions and statutes limiting the enforceability of provisions
imposing penalties, forfeitures, late payment charges, an increase in interest rate, or payment or
other additional consideration: (i) upon prepayment, late payment, maturity, default or a lenders
election to accelerate a loan, particularly in cases where the occurrence of a default or waiving
the benefit of a statutory right bears no reasonable relation to the damage suffered by the lender
or is otherwise held to be a penalty; or (ii) as a consequence of costs incurred by a lender or
imposition of governmental charges, taxes, levies or requirements upon a lender.
(E) The enforceability of provisions regarding consent to service, jurisdiction, venue or
forum of any claim, demand, action or cause of action arising under or related to the Underwriting
Agreement or the Indenture or the transactions contemplated therein. We express no opinion as to
any provision purporting to waive rights to trial by jury, service of process or objections to the
laying of venue or to forum on the basis of forum
non conveniens
in connection with any litigation
arising out of or pertaining to the Underwriting Agreement or the Indenture.
(F) We express no opinion concerning whether the directors of the Company have complied with
any applicable fiduciary duties in connection with the authorization, execution and performance of
the Notes, the Indenture and the Underwriting Agreement. In addition, we express no opinion with
respect to: (i) the effect or availability of equitable remedies (regardless
A-6
of whether any such remedy is considered in a proceeding at law or in equity), including injunctive
relief or specific performance; (ii) the effect of antitrust or trade regulation laws; or (iii) the
compliance or non-compliance with the antifraud provisions of state and federal laws, rules and
regulations concerning the issuance of securities.
(G) We express no opinion as to the accounting or tax consequences of the transactions
contemplated by the Underwriting Agreement and the Indenture under applicable federal, state and
local income tax laws and regulations.
***
This opinion is intended for your sole and exclusive use and is not to be made available to or
relied upon by other persons or entities without our prior express written consent. This opinion
is rendered as of the date hereof and we disclaim any undertaking to advise you of any facts,
circumstances, events or developments hereafter occurring or coming to our attention which may
alter, affect or modify the opinions expressed herein.
Very truly yours,
A-7
[INSERT LETTERHEAD]
December 14, 2010
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
RBS SECURITIES INC.
As Representatives of the several Underwriters
c/o
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, NY 10036
RBS SECURITIES INC.
600 Washington Blvd
Stamford, CT 06901
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Re:
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3.50% Senior Notes Due 2016 of Life Technologies Corporation
5.00% Senior Notes Due 2021 of Life Technologies Corporation
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Ladies and Gentlemen:
We have acted as counsel to Life Technologies Corporation, a Delaware corporation (the
Company
), in connection with the issuance and sale by the Company of $400,000,000
aggregate principal amount of the Companys 3.50% Senior Notes due 2016 (the
2016 Notes
) and
$400,000,000 aggregate principal amount of the Companys 5.00% Senior Notes due 2021 (the
2021
Notes
and, together with the 2016 Notes, the
Notes
). The Notes will be issued pursuant
to an indenture (the
Base Indenture
) dated February 19, 2010 by and between the Company
and U.S. Bank National Association, as trustee (the
Trustee
). Certain terms of the Notes
will be established pursuant to a supplemental indenture under the Base Indenture (the
Supplemental Indenture
and, together with the Base Indenture, the
Indenture
).
The Notes and the Indenture are described in the Registration Statement on Form S-3 (the
Registration Statement
), in the form in which it was filed with the Securities and
Exchange Commission (the
Commission
) under the Securities Act of 1933, as amended (the
Act
), including the Preliminary Prospectus and the Prospectus.
This letter is furnished pursuant to Section 5(f) of the Underwriting Agreement dated December 9,
2010 (the
Underwriting Agreement
), by and between the Company and Merrill Lynch, Pierce,
Fenner & Smith Incorporated and RBS Securities Inc. as Representatives of the several
A-8
underwriters named in Schedule A thereto (the
Underwriters
). Capitalized terms used
herein that are not defined shall have the respective meanings given them in the Underwriting
Agreement.
The establishment or confirmation of factual matters or financial or quantitative information is
beyond the scope and purpose of our professional engagement in this matter. Therefore, we are not
passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or the Disclosure Package
(except for those set forth in the Preliminary Prospectus and the Prospectus under the caption
Description of Notes, insofar as they purport to constitute a summary of the terms of the Notes
and the Indenture), and we have not made any independent check or verification thereof. However,
in the course of acting as counsel to the Company in connection with the preparation by the Company
of the Registration Statement, the Prospectus and the Disclosure Package, we have participated in
conferences with officers and other representatives of the Company, representatives of the
Underwriters, counsel for the Underwriters and the independent registered public accounting firm
for the Company during which conferences the contents of the Registration Statement, the Prospectus
and the Disclosure Package and related matters were discussed.
Based upon our participation described above, we advise you that nothing has come to our attention
that caused us to believe that (i) the Registration Statement (other than the financial
statements, schedules and other financial data contained therein or omitted therefrom, as to which
we express no view), as of the time it became effective or is deemed to have become effective under
Section 11(d) of the Securities Act and Rule 430(B) thereunder 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, (ii) the Disclosure Package (other than the financial
statements, schedules and other financial data contained therein or omitted therefrom, as to which
we express no view), as of the Execution Time, contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (iii) the Prospectus (other than
the financial statements, schedules and other financial data contained therein or omitted
therefrom, as to which we express no view), as of its date and the date hereof, contained or
contains an untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
This letter is intended for your sole and exclusive use and is not to be made available or relied
upon by other persons or entities without our prior express written consent. This letter is
rendered as of the date hereof and we disclaim any undertaking to advise you of any facts,
circumstances, events or developments hereafter occurring or coming to our attention which may
alter, affect or modify the confirmations included herein.
Very truly yours,
A-9
EXHIBIT
B
LIFE TECHNOLOGIES CORPORATION
Form of Final Term Sheet
December 9, 2010
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3.50% Senior Notes due 2016
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5.00% Senior Notes due 2021
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Size:
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$400,000,000
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$400,000,000
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Maturity:
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January 15, 2016
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January 15, 2021
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Coupon (Interest
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3.50%
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5.00%
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Rate):
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Yield to Maturity:
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3.534%
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5.056%
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Spread to
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T+ 165 basis points
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T+ 185 basis points
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Benchmark
Treasury:
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Benchmark
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UST 1.375% due November 30, 2015
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UST 2.625% due November 15, 2020
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Treasury:
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Benchmark
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Price: 97-19
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Price: 95-03
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Treasury Price
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Yield: 1.884%
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Yield: 3.206%
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and Yield:
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Interest Payment
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January 15 and July 15 of each year,
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January 15 and July 15 of each year,
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Dates:
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commencing July 15, 2011
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commencing July 15, 2011
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Redemption
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In whole or in part, at the greater of (1)
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In whole or in part, at the greater of (1)
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Provisions:
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100% of the principal amount or (2)
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100% of the principal amount or (2)
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discounted present value at the Treasury
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discounted present value at the Treasury
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Rate plus 25 basis points plus accrued and
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Rate plus 30 basis points plus accrued and
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unpaid interest to the redemption date.
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unpaid interest to the redemption date
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prior to October 15, 2020.
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In whole or in part, at par plus accrued
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and unpaid interest to the redemption date
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on or after October 15, 2020.
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Price to Public:
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99.840%
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99.556%
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Settlement Date:
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December 14, 2010
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December 14, 2010
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CUSIP/ISIN Number:
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53217V AD1 / US53217VAD10
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53217V AE9 / US53217VAE92
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Joint
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Merrill Lynch, Pierce, Fenner & Smith
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Merrill Lynch, Pierce, Fenner & Smith
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Book-Running
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Incorporated
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Incorporated
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Managers:
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RBS Securities Inc.
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RBS Securities Inc.
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Mitsubishi UFJ Securities (USA), Inc.
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Mitsubishi UFJ Securities (USA), Inc.
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B-1
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3.50% Senior Notes due 2016
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5.00% Senior Notes due 2021
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Senior
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Citigroup Global Markets Inc.
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Citigroup Global Markets Inc.
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Co-Managers:
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DnB NOR Markets, Inc.
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DnB NOR Markets, Inc.
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Co-Managers:
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Goldman, Sachs & Co.
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Goldman, Sachs & Co.
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J.P. Morgan Securities LLC
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J.P. Morgan Securities LLC
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U.S. Bancorp Investments, Inc.
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U.S. Bancorp Investments, Inc.
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Moelis & Company LLC
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Moelis & Company LLC
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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, Merrill Lynch, Pierce, Fenner & Smith
Incorporated or RBS Securities Inc. can arrange to send you the prospectus if you request it by
calling or e-mailing Merrill Lynch, Pierce, Fenner & Smith
Incorporated at 1-800-294-1322 or dg.prospectus distribution@bofasecurities.com; or RBS Securities
Inc. at 1-866-884-2071.
B-2
Exhibit 4.2
Execution Version
LIFE TECHNOLOGIES CORPORATION
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of December 14, 2010
to the Indenture dated as of February 19, 2010
3.50% Senior Notes due 2016
5.00% Senior Notes due 2021
TABLE OF CONTENTS
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Page
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ARTICLE 1
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APPLICATION OF SECOND SUPPLEMENTAL INDENTURE
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Section 1.01.
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Application of Second Supplemental Indenture
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2
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ARTICLE 2
DEFINITIONS
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Section 2.01.
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Certain Terms Defined in the Indenture
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2
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Section 2.02.
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Definitions
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2
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ARTICLE 3
FORM AND TERMS OF THE NOTES
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Section 3.01.
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Form and Dating
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5
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Section 3.02.
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Terms of the Notes
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Section 3.03.
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Optional Redemption
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Section 3.04.
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Repurchase of Notes upon a Change of Control
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8
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Section 3.05.
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Amendment of Events of Default
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ARTICLE 4
MISCELLANEOUS
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Section 4.01.
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Conflict with Trust Indenture Act
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9
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Section 4.02.
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New York Law to Govern
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9
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Section 4.03.
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Counterparts
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10
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Section 4.04.
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Separability Clause
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10
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Section 4.05.
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Ratification
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10
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Section 4.06.
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Effectiveness
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EXHIBIT A-1 Form of 3.50% Senior Notes due 2016
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A-1
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EXHIBIT B-1 Form of 5.00% Senior Notes due 2021
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B-1
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i
SECOND SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this
Second Supplemental Indenture
), dated as of December 14, 2010,
between LIFE TECHNOLOGIES CORPORATION, a Delaware corporation (the
Company
), and U.S. Bank
National Association, as Trustee (the
Trustee
).
RECITALS OF THE COMPANY
WHEREAS
, the Company and the Trustee executed and delivered an Indenture, dated as of February
19, 2010 (the
Base Indenture
, and together with the Second Supplemental Indenture, the
Indenture
), to provide for the issuance by the Company from time to time of Notes to be issued in
one or mores series as provided in the Indenture;
WHEREAS
, Section 901 of the Base Indenture provides, among other things, that the Company and
the Trustee may enter into indentures supplemental to the Base Indenture, without the consent of
any holders of Notes, to establish the form of any Note, as permitted by Section 201 of the Base
Indenture, and to provide for the issuance of the Notes (as defined below), as permitted by Section
301 of the Base Indenture, and to set forth the terms thereof;
WHEREAS
, the Company desires to execute this Second Supplemental Indenture pursuant to Section
201 of the Base Indenture to establish the form, and pursuant to Section 301 of the Base Indenture
to provide for the issuance, of a series of its senior notes designated as its 3.50% Senior Notes
due January 15, 2016 (the
2016 Notes
) and a series of its senior notes designated as its 5.00%
Senior Notes due January 15, 2021 (the
2021 Notes
, and together with the 2016 Notes, the
Notes
), in an initial aggregate principal amount of $400,000,000, in the case of the 2016 Notes
and $400,000,000 in the case of the 2021 Notes. The 2016 Notes and the 2021 Notes are each a
series of Notes as referred to in Section 301 of the Base Indenture.
WHEREAS
, the Company has delivered to the Trustee an Opinion of Counsel and an Officers
Certificate pursuant to Sections 102 and 903 of the Base Indenture to the effect that the execution
and delivery of the Second Supplemental Indenture is authorized or permitted under the Base
Indenture and that all conditions precedent provided for in the Base Indenture to the execution and
delivery of this Second Supplemental Indenture to be complied with by the Company have been
complied with;
WHEREAS
, the Company has requested that the Trustee execute and deliver this Second
Supplemental Indenture;
WHEREAS
, all things necessary have been done by the Company to make this Second Supplemental
Indenture, when executed and delivered by the Company, a valid and legally binding instrument; and
WHEREAS
, all things necessary have been done by the Company to make the Notes, when executed
by the Company and authenticated and delivered in accordance with the provisions of this Indenture,
the valid obligations of the Company;
1
NOW, THEREFORE:
In consideration of the premises stated herein and the purchase of the Notes by the holders
thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the Notes as follows:
ARTICLE 1
APPLICATION OF SECOND SUPPLEMENTAL INDENTURE
Section 1.01.
Application of Second Supplemental Indenture
. Notwithstanding any other
provision of this Second Supplemental Indenture, all provisions of this Second Supplemental
Indenture are expressly and solely for the benefit of the holders of the Notes and any such
provisions shall not be deemed to apply to any other Notes issued under the Base Indenture and
shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than
with respect to the Notes. Unless otherwise expressly specified, references in this Second
Supplemental Indenture to specific Article numbers or Section numbers refer to Articles and
Sections contained in this Second Supplemental Indenture as they amend or supplement the Base
Indenture, and not the Base Indenture or any other document. All Initial 2016 Notes and Additional
2016 Notes, if any, and all Initial 2021 Notes and Additional 2021 Notes, if any, will each be
treated as a single class for all purposes of this Indenture, including waivers, amendments,
redemptions and offers to purchase.
ARTICLE 2
DEFINITIONS
Section 2.01.
Certain Terms Defined in the Indenture
. For purposes of this Second
Supplemental Indenture, all capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Base Indenture, as amended hereby.
Section 2.02.
Definitions
. For the benefit of the holders of the Notes, Section 101
of the Base Indenture shall be amended by adding the following new definitions:
Additional Notes
has the meaning specified in Section 3.02(b) hereto.
Below Investment Grade Rating Event
means the Notes are rated below Investment Grade Rating
by at least two of the three Rating Agencies on any date commencing upon the first public notice by
the Company of the occurrence of a Change of Control or the Companys intention to effect a Change
of Control and ending 60 days following consummation of such Change of Control (which period shall
be extended so long as the rating of the Notes is under publicly announced consideration for
possible downgrade by any of the Rating Agencies).
Change of Control
means the occurrence of any of the following:
(1) direct or indirect sale, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or substantially all
of the properties or assets of the Company and its subsidiaries taken as a whole to any person
(as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or one of its
Subsidiaries; (2) the consummation of any transaction (including, without limitation,
2
any merger or consolidation) as a result of which any person (as that term is 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 more than 50% of the Companys
outstanding voting stock or other voting stock into which the Companys voting stock is
reclassified, consolidated, exchanged or changed, measured by voting power rather than number of
shares;
provided, however
, that a transaction will not be deemed to involve a Change of Control if
the Company becomes a direct or indirect wholly owned subsidiary of a holding company and the
holders of the voting stock of such holding company immediately following that transaction are
substantially the same as the holders of the Companys voting stock immediately prior to that
transaction; (3) the Company consolidates with, or merges with or into, any person or group (as
that term is used in Section 13(d)(3) of the Exchange Act), or any person or group consolidates
with, or merges with or into, the Company, in any such event pursuant to a transaction in which any
of the Companys voting stock or the voting stock of such other person is converted into or
exchanged for cash, securities or other property, other than any such transaction where the shares
of the Companys voting stock outstanding immediately prior to such transaction constitute, or are
converted into or exchanged for, a majority of the voting stock of the surviving person or any
direct or indirect parent company of the surviving person immediately after giving effect to such
transaction; (4) the first day on which a majority of the members of the Companys board of
directors are not Continuing Directors; or (5) the adoption of a plan relating to the Companys
liquidation or dissolution.
Change of Control Triggering Event
means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes to be redeemed.
Comparable Treasury Price
means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations, (b) if fewer than four Reference Treasury
Dealer Quotations are obtained, the arithmetic average of those quotations or (c) if only one
Reference Treasury Dealer Quotation is obtained, such Reference Treasury Dealer Quotation.
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
hereof; or (2) was nominated for election or elected to the board of directors of the Company with
the approval of a majority of the Continuing Directors who were members of such board of directors
of the Company at the time of such nomination or election (either by 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).
Fitch
means Fitch, Inc. and any successors to its rating agency business.
3
Global Note
means, individually and collectively, each of the Notes in the form of Global
Notes issued to the Depositary or its nominee, substantially in the form of Exhibit A, Exhibit B
and Exhibit C.
Independent Investment Banker
means the Reference Treasury Dealer appointed by the Company.
Initial Notes
has the meaning specified in Section 3.02(b) hereto.
Investment Grade Rating
means a rating by Moodys equal to or higher than Baa3 (or the
equivalent under a successor rating category of Moodys), a rating by S&P equal to or higher than
BBB- (or the equivalent under any successor rating category of S&P) or a rating by Fitch equal to
or higher than BBB- (or the equivalent under any successor rating category of Fitch).
Moodys
means Moodys Investors Service, Inc. and any successors to its rating agency
business.
Notes
has the meaning specified in the recitals hereto.
Principal Amount
means the aggregate principal amount of all Outstanding Initial Notes and
Additional Notes.
Rating Agencies
means (1) Moodys, S&P and Fitch; and (2) if any or all of Moodys, S&P or
Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available for
reasons outside of the Companys control, a nationally recognized statistical rating organization
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as
certified by a resolution of the Companys Board of Directors) as a replacement agency for any of
Moodys, S&P or Fitch, or all of them, as the case may be.
Reference Treasury Dealer
means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated
and RBS Securities Inc., and their respective successors, or if at any time any of the above is not
a primary U.S. Government securities dealer, any other nationally recognized investment banking
firm selected by the Company that is a primary U.S. Government securities dealer, as well as two
other nationally recognized investment banking firms selected by the Company that are primary U.S.
Government securities dealers.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Remaining Scheduled Payments
means, with respect to each Note to be redeemed, the remaining
scheduled payments of the principal thereof and interest thereon that would be due after the
related Redemption Date for such redemption;
provided, however
, that, if such Redemption Date is
not an Interest Payment Date with respect to such Note, the amount of
4
the next succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such Redemption Date.
S&P
means Standard & Poors Ratings Services, a Standard & Poors Financial Services LLC
business and any successor to its rating agency business.
Treasury Rate
means, for any Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to Maturity, computed as the second Business Day immediately preceding that
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 that Redemption Date.
Trustee
has the meaning specified in the first paragraph hereto.
Voting Stock
means capital stock of any class or kind the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of the Company, even if the right to vote has been suspended by the
happening of such a contingency.
ARTICLE 3
FORM AND TERMS OF THE NOTES
Section 3.01.
Form and Dating
. The Notes and the Trustees certificate of
authentication shall be substantially in the form of
Exhibit A
and
Exhibit B
attached hereto. The Notes shall be executed on behalf of the Company by two Officers of the
Company. The Notes may have notations, legends or endorsements required by law, stock exchange
rules or usage. Each Note shall be dated the date of its authentication. The Notes and any
beneficial interest in the Notes shall be in minimum denominations of $2,000 and integral multiples
of $1,000 in excess thereof.
The terms and notations contained in the Notes shall constitute, and are hereby expressly
made, a part of the Indenture, and the Company and the Trustee, by their execution and delivery of
this Second Supplemental Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Note
. The Notes shall be issued initially in global form (the
Global Note
),
which shall be deposited with the Trustee as custodian for the Depositary and registered in the
name of Cede & Co., the Depositarys nominee, duly executed on behalf of the Company by two
Officers of the Company, and authenticated by the Trustee in accordance with Section 202 of the
Base Indenture.
(b) Book-Entry Provisions
. This Section 3.01(b) shall apply only to the Global Notes
deposited with the Trustee as custodian for the Depositary.
The Company shall execute and the Trustee shall, in accordance with Section 202 of the Base
Indenture, authenticate, and hold each Global Note as custodian for the Depositary.
5
Section 3.02.
Terms of the Notes
. The following terms relating to the Notes are
hereby established pursuant to Section 301 of the Base Indenture:
(a)
Title
. The 2016 Notes shall constitute a series of Notes having the title 3.50% Senior
Notes due 2016 and the 2021 Notes shall constitute a separate series of Notes having the title
5.00% Senior Notes due 2021.
(b)
Principal Amount
. The aggregate principal amount of the 2016 Notes (the
Initial 2016
Notes
) and the 2021 Notes (the
Initial 2021 Notes
, and together with the Initial 2016 Notes, the
Initial Notes
) that may be initially authenticated and delivered under the Indenture shall be
$400,000,000 and $400,000,000, respectively. The Company may from time to time, without the
consent of the holders of Notes, issue additional 2016 Notes (in any such case
Additional 2016
Notes
) or additional 2021 Notes (in any such case,
Additional 2021 Notes
, and together with any
Additional 2016 Notes, the
Additional Notes
) having the same ranking and the same interest rate,
Maturity and other terms as the Initial 2016 Notes or the Initial 2021 Notes, as the case may be
(except for the payment of interest accruing prior to the issue date of such Additional Notes, or,
in some cases, the first Interest Payment Date following the issue of such Additional Notes). Any
Additional 2016 Notes and the Initial 2016 Notes, as the case may be, and any Additional 2021 Notes
and the Initial 2021 Notes, as the case may be, shall each constitute a single series under the
Indenture and all references to the 2016 Notes shall include the Initial 2016 Notes and any
Additional 2016 Notes and all references to the 2021 Notes shall include the Initial 2021 Notes and
any Additional 2021 Notes, unless the context otherwise requires. The aggregate principal amount of
each of the Additional 2016 Notes and Additional 2021 Notes shall be unlimited.
(c)
Maturity Date
. The entire Outstanding principal of the 2016 Notes and the 2021 Notes
shall be payable on January 15, 2016 and January 15, 2021, respectively.
(d)
Interest Rate
. The rate at which the 2016 Notes shall bear interest shall be 3.50% per
annum and the rate at which the 2021 Notes shall bear interest shall be 5.00% per annum; the date
from which interest shall accrue on the Notes shall be December 14, 2010, or the most recent
Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates
for the Notes shall be January 15 and July 15 of each year, beginning July 15, 2011; the interest
so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid,
in immediately available funds, to the Persons in whose names the Notes are registered at the close
of business on the Regular Record Date for such interest, which shall be the January 1 or July 1,
as the case may be, immediately preceding such Interest Payment Date.
(e)
Payment
. The Trustee shall be the initial Paying Agent and Security Registrar. Payment
of the principal and interest shall be at the corporate office of the Trustee in the Borough of
Manhattan, The City of New York;
provided, however
, that each installment of interest and principal
on the 2016 Notes or the 2021 Notes may at the Companys option be paid by check to the holders at
the holders address in the Security Register. The 2016 Notes and the 2021 Notes shall initially
be issued as Global Notes. Payments with respect to Notes represented by one or more Global Notes
shall be made by wire transfer of immediately available funds to the account specified by the
Depositary. Payments with respect to Notes represented by one or
6
more Definitive Notes held by a holder of at least U.S.$1,000,000 aggregate principal amount
of Notes shall be made by wire transfer to a U.S. dollar account maintained by the payee with a
bank in the United States if such holder elects payment by wire transfer by giving written notice
to the Trustee or the Paying Agent to such effect designating such account no later than 10 days
immediately preceding the relevant due date for payment (or such other date as the Trustee or
Paying Agent may accept in its discretion).
(f)
Currency
. The currency of denomination of the Notes is United States Dollars. Payment of
principal of and interest and premium, if any, on the Notes shall be made in United States Dollars.
Section 3.03.
Optional Redemption
.
(a) The provisions of Article Eleven of the Base Indenture, as amended by the provisions of
this Second Supplemental Indenture, shall apply to the Notes.
(b) The 2016 Notes and, prior to October 15, 2020, the 2021 Notes shall be redeemable, in each
case, in whole at any time or in part from time to time, at the Companys option. Upon redemption
of the Notes, the Company shall pay a Redemption Price equal to the greater of:
(i) 100% of the principal amount of the 2016 Notes or the 2021 Notes to be
redeemed, as the case may be, and
(ii) the sum of the present values of the Remaining Scheduled Payments of the
2016 Notes or the 2021 Notes to be redeemed, as the case may be, 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 25 basis points in the case of the 2016
Notes and 30 basis points in the case of the 2021 Notes,
plus
, in each case, accrued and unpaid interest thereon to the Redemption Date.
Commencing on October 15, 2020, the 2021 Notes shall be redeemable, in whole or in part, at
any time and from time to time, at the Companys option, at a redemption price equal to 100% of the
principal amount of the 2021 Notes being redeemed plus accrued and unpaid interest to the
Redemption Date.
Notwithstanding the foregoing, installments of interest on the applicable series of Notes that
are due and payable on Interest Payment Dates falling on or prior to a Redemption Date shall be
payable on the Interest Payment Date to the registered holders as of the close of business on the
relevant record date according to the Notes and the Indenture.
(c) On and after the Redemption Date for the Notes, interest shall cease to accrue on the
Notes or any portion thereof called for redemption, unless the Company defaults in the payment of
the Redemption Price and accrued interest, if any. On or before the Redemption Date for the Notes,
the Company shall deposit with the Trustee or a Paying Agent, funds sufficient to pay the
Redemption Price of the Notes to be redeemed on the Redemption Date, and
7
(except if the Redemption Date shall be an Interest Payment Date) accrued interest, if any.
If less than all of the Notes are to be redeemed, the Notes shall be redeemed in accordance with
Section 1103 of the Base Indenture.
(d) Notice of any redemption shall be mailed at least 30 days but not more than 60 days before
the Redemption Date to each holder of the Notes to be redeemed;
provided, however
, that the Company
shall notify the Trustee of the Redemption Date at least 15 days prior to the date of the giving of
such notice (unless a shorter notice shall be satisfactory to the Trustee). Such notice shall be
provided in accordance with Section 1104 of the Base Indenture. If the Redemption Price cannot be
determined at the time such notice is to be given, the actual Redemption Price, calculated as
described above in clause (b), shall be set forth in an Officers Certificate of the Company
delivered to the Trustee no later than two Business Days prior to the Redemption Date. Notice of
redemption having been given as provided in the Indenture, the Notes called for redemption shall,
on the Redemption Date, become due and payable at the Redemption Price, and accrued and unpaid
interest, if any, to the Redemption Date, and from and after such Redemption Date (unless the
Company shall default in the payment of the Redemption Price and accrued interest, if any) such
Notes shall cease to bear interest. Installments of interest on the Notes to be redeemed that are
due and payable on Interest Payment Dates falling on or prior to the Redemption Date shall be
payable on the Interest Payment Date in accordance with the Indenture.
Section 3.04.
Repurchase of Notes upon a Change of Control
.
(a) If a Change of Control Triggering Event occurs with respect to the Notes, unless the
Company shall have exercised its option to redeem the 2016 Notes and the 2021 Notes in full, as set
forth in Section 3.03 of this Second Supplemental Indenture, the Company shall make an offer (the
Change of Control Offer
) to each holder of the 2016 Notes and the 2021 Notes to repurchase any
and all (equal to $2,000 or an integral multiple of $1,000 in excess of $2,000) of such holders
2016 Notes and 2021 Notes at a repurchase price set forth in this Section 3.04. In the Change of
Control Offer, the Company shall be required to offer payment in cash equal to 101% of the
aggregate principal amount of 2016 Notes and 2021 Notes to be repurchased,
plus
accrued and unpaid
interest, if any, on the 2016 Notes and 2021 Notes to be repurchased up to, but not including, the
date of repurchase (the
Change of Control Payment
). With respect to the Notes, within 30 days
following any Change of Control Triggering Event, the Company shall mail a notice to holders of
Notes with a copy to the Trustee describing the transaction or transactions that constitute or may
constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date
specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from
the date such notice is mailed (the
Change of Control Payment Date
).
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered
pursuant to the Change of Control Offer;
8
(ii) deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Notes or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly
accepted, together with an Officers Certificate stating (1) the aggregate Principal
Amount of Notes or portions of Notes being repurchased, (2) that all conditions
precedent contained herein to make a Change of Control Offer have been complied with
and (3) that the Change of Control Offer has been made in compliance with the
Indenture.
The Company shall publicly announce the results of the Change of Control Offer on or as soon
as possible after the date of purchase.
(c) The Company shall comply in all respects with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the extent such 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 this Section 3.04, the Company
shall comply with the applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 3.04 by virtue of any such conflict.
Section 3.05.
Amendment of Events of Default
. Section 501 of the Base Indenture is hereby
amended, in connection with this Second Supplemental Indenture, by inserting the following clause
(9):
(9) failure of the Company to comply with the provisions of Section 3.04 of the Second
Supplemental Indenture.
ARTICLE 4
MISCELLANEOUS
Section 4.01.
Conflict with Trust Indenture Act
. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act
or deemed to be a part of and govern this Second Supplemental Indenture, such required or deemed
provision shall control. If any provision of this Second Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Second Supplemental Indenture as so modified or to be
excluded, as the case may be.
Section 4.02.
New York Law to Govern
.
THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW OR ANY SUCCESSOR TO SUCH STATUTE). THE TRUSTEE AND THE
COMPANY AGREE TO SUBMIT TO THE NON-
9
EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE
COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SECOND SUPPLEMENTAL INDENTURE OR THE NOTES. THIS SECOND
SUPPLEMENTAL INDENTURE IS SUBJECT TO THE PROVISIONS OF THE TRUST INDENTURE ACT THAT ARE REQUIRED TO
BE PART OF THE INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY SUCH PROVISIONS.
THE TRUSTEE AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS SECOND SUPPLEMENTAL INDENTURE OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE TRUSTEE OR THE COMPANY RELATING
THERETO. THE COMPANY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE TRUSTEE AND THE HOLDERS
ENTERING INTO THIS SECOND SUPPLEMENTAL INDENTURE.
Section 4.03.
Counterparts
. This Second Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 4.04.
Separability Clause
. In case any provision in this Second Supplemental
Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 4.05.
Ratification
. The Base Indenture, as supplemented and amended by this
Second Supplemental Indenture, is in all respects ratified and confirmed. The Indenture shall be
read, taken and construed as one and the same instrument. All provisions included in this Second
Supplemental Indenture with respect to the Notes supersede any conflicting provisions included in
the Base Indenture unless not permitted by law. The Trustee accepts the trusts created by the
Indenture, and agrees to perform the same upon the terms and conditions of the Indenture.
Section 4.06.
Effectiveness
. The provisions of this Second Supplemental Indenture
shall become effective as of the date hereof.
Section 4.07.
The Trustee
. The Trustee accepts the trusts created by the Indenture,
and agrees to perform the same upon the terms and conditions of the Indenture. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of
this Second Supplemental Indenture or the due execution thereof by the Company. The recitals
contained herein shall be taken as the statements solely of the Company, and the Trustee assumes no
responsibility for the correctness thereof.
10
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first above written.
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LIFE TECHNOLOGIES CORPORATION
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By:
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/s/
David H. Smith
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Name:
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David H. Smith
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Title:
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Treasurer
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/
Paula Oswald
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Name:
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Paula Oswald
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Title:
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Vice President
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Second Supplemental Indenture
EXHIBIT A
[FACE
OF NOTE]
LIFE TECHNOLOGIES CORPORATION
[Global Notes Legend]
THIS GLOBAL NOTE IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE), IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS
GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 203(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (III)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
LIFE
TECHNOLOGIES CORPORATION
3.50% Senior Notes due 2016
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CUSIP NO. 53217V AD1
ISIN NO. US53217VAD10
No. R-[__]
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US$[_________]
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Life Technologies Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or
its registered assigns, the principal sum of
[______________] Dollars ($_________) on January 15, 2016, and to pay interest thereon from
December 14, 2010 or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on January 15 and July 15 in each year, commencing July 15, 2011,
to the Persons in whose names the Notes are registered at the close of business on the immediately
preceding January 1 or July 1, as the case may be, at the rate of 3.50% per annum, until the
principal hereof is paid or made available for payment,
provided
,
however
that any principal and
premium, and any such installment of interest, which is overdue shall bear interest at the rate of
3.50% per annum (to the extent that the payment of such interest shall be legally enforceable),
from the dates such amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand). 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 Notes (or one or more Predecessor Notes) 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 Notes) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to holder of Notes 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 Notes 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 The City of New York,
New York, in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts;
provided
,
however
, that at the option of the
Company payment of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this 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 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.
In Witness Whereof
, the Company has caused this instrument to be duly executed.
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LIFE TECHNOLOGIES CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the within-mentioned
Indenture.
Dated: December 14, 2010
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U.S. Bank National Association,
as Trustee
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By:
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Authorized Signatory
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[Form of Reverse of Note] 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 February 19, 2010 as supplemented by the Second Supplemental Indenture
(herein collectively referred to as the Indenture, which term shall have the meaning assigned to
it in such instrument), between the Company and U.S. Bank National Association, as Trustee (herein
called the Trustee, which term includes any successor trustee under the Indenture and the Second
Supplemental Indenture), and reference is hereby made to the Indenture and the Second Supplemental
Indenture for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered.
The Notes of this series are subject to redemption at any time, upon not less than 30 days
and not more than 60 days notice by mail, as a whole or from time to time in part, at the election
of the Company, on any date prior to their Stated Maturity at a Redemption Price equal to the
greater of (i) 100% of the principal amount of such Notes to be redeemed, and (ii) the sum of the
present values of the Remaining Scheduled Payments (as defined below) of the Notes to be redeemed,
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points,
plus
, accrued
and unpaid interest thereon to the Redemption Date.
Notwithstanding the foregoing, installments of interest on the Notes that are due and payable
on interest payment dates falling on or prior to a Redemption Date will be payable on the interest
payment date to the registered holders as of the close of business on the relevant record date
according to the Notes, the Indenture and the Second Supplemental Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes to be redeemed.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations, (b) if fewer than four Reference Treasury
Dealer Quotations are obtained, the arithmetic average of those quotations or (c) if only one
Reference Treasury Dealer Quotation is obtained, such Reference Treasury Dealer Quotation.
Independent Investment Banker means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated
and RBS Securities Inc., and their respective successors, or if at any time any of the above is not
a primary U.S. Government securities dealer, any other nationally recognized
investment banking firm selected by the Company that is a primary U.S. Government securities
dealer, as well as two other nationally recognized investment banking firms selected by the Company
that are primary U.S. Government securities dealers.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Remaining Scheduled Payments means, with respect to each Note to be redeemed, the remaining
scheduled payments of the principal thereof and interest thereon that would be due after the
related Redemption Date for such redemption; provided, however, that, if such Redemption Date is
not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of interest accrued thereon to such
Redemption Date.
Treasury Rate means, for any Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to Maturity, computed as the second Business Day immediately preceding that
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 that 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 for the unredeemed portion hereof will be issued in the name of the holder hereof
upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Note or certain restrictive covenants and Events of Default with respect to this Note, in each
case upon compliance with certain conditions set forth in the Indenture.
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 be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the holders of the
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 a majority in principal amount of the Notes at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
holders of specified percentages in principal amount of the 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 herefor or in lieu hereof, whether or not notation
of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the holder of this Note shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the holders of not less than 25% in principal amount of the Notes of this
series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity or
security reasonably satisfactory to it, and the Trustee shall not have received from the holders of
a majority in principal amount of Notes of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the holder of this Note for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this 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 any premium 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 may be registered and this Note may be exchanged as provided in the
Indenture.
The Notes of this series are issuable only in registered form without coupons in denominations
of $2,000 and integral multiples of $1,000 in excess thereof.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this 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 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 of this series shall be governed by and construed in accordance with the laws of the
State of New York (including without limitation Section 5-1401 of the New York General Obligations
Law or any successor to such statute). The Trustee and the Company agree to submit to the
non-exclusive jurisdiction of any United States federal or state court located in the borough of
Manhattan, in the city of New York in any action or proceeding arising out of or relating to the
Notes.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Insert assignees social security or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint ____________________ as agent to
transfer this Note on the books of the Company. The agent may substitute another to act for him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date:______________
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*
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NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the
following recognized signature Guarantee Programs: (i) The Notes Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of an interest in another Global Note or a Definitive Note
for an interest in this Global Note have been made:
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Amount of decrease in
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Amount of increase in
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Principal Amount of this
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Signature of authorized
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Principal Amount of this
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Principal Amount of this
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Global Note following
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signatory of Trustee or
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Date of Exchange
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Global Note
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Global Note
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such decrease or increase
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Notes Custodian
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EXHIBIT B
[
FACE OF NOTE
]
LIFE TECHNOLOGIES CORPORATION
[Global Notes Legend]
THIS GLOBAL NOTE IS HELD BY AND REGISTERED IN THE NAME OF THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE), IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS
GLOBAL NOTE MAY BE EXCHANGED PURSUANT TO SECTION 203(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (III)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
LIFE TECHNOLOGIES CORPORATION
5.00% Senior Notes due 2021
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CUSIP NO. 53217V AE9
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ISIN NO. US53217VAE92
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No. R-[__]
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US$[_________]
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Life Technologies Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the Company, which term includes any
successor Person under the Indenture hereinafter referred to), for value received, hereby promises
to pay to CEDE & CO., or its registered assigns, the principal sum of [______________] Dollars
($_________) on January 15, 2021, and to pay interest thereon from December 14, 2010 or from the
most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on January 15 and July 15 in each year, commencing July 15, 2011, to the Persons in
whose names the Notes are registered at the close of business on the immediately preceding January
1 or July 1, as the case may be, at the rate of 5.00% per annum, until the principal hereof is paid
or made available for payment,
provided
,
however
that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of 5.00% per annum (to
the extent that the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such interest shall be
payable on demand). 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
Notes (or one or more Predecessor Notes) 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 Notes) is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to holder of
Notes 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 Notes 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 The City of New York,
New York, in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts;
provided
,
however
, that at the option of the
Company payment of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this 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 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.
In Witness Whereof
, the Company has caused this instrument to be duly executed.
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LIFE TECHNOLOGIES CORPORATION
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the within-mentioned
Indenture.
Dated: December 14, 2010
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U.S. Bank National Association,
as Trustee
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By:
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Authorized Signatory
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[Form
of Reverse of Note] 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 February 19, 2010 as supplemented by the Second Supplemental Indenture
(herein collectively referred to as the Indenture, which term shall have the meaning assigned to
it in such instrument), between the Company and U.S. Bank National Association, as Trustee (herein
called the Trustee, which term includes any successor trustee under the Indenture and the Second
Supplemental Indenture), and reference is hereby made to the Indenture and the Second Supplemental
Indenture for a statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered.
Prior to October 15, 2020, the Notes of this series are subject to redemption at any time,
upon not less than 30 days and not more than 60 days notice by mail, as a whole or from time to
time in part, at the election of the Company, on any date prior to their Stated Maturity at a
Redemption Price equal to the greater of (i) 100% of the principal amount of such Notes to be
redeemed, and (ii) the sum of the present values of the Remaining Scheduled Payments (as defined
below) of the Notes to be redeemed, discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined
below) plus 30 basis points,
plus
, accrued and unpaid interest thereon to the Redemption Date.
Commencing on October 15, 2020, the Notes of this series shall be redeemable, in whole or in part,
at any time and from time to time, at the election of the Company, at a redemption price equal to
100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest to the
Redemption Date. Notwithstanding the foregoing, installments of interest on the Notes that are due
and payable on interest payment dates falling on or prior to a Redemption Date will be payable on
the interest payment date to the registered holders as of the close of business on the relevant
record date according to the Notes, the Indenture and the Second Supplemental Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes to be redeemed.
Comparable Treasury Price means, with respect to any Redemption Date, (a) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations, (b) if fewer than four Reference Treasury
Dealer Quotations are obtained, the arithmetic average of those quotations or (c) if only one
Reference Treasury Dealer Quotation is obtained, such Reference Treasury Dealer Quotation.
Independent Investment Banker means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated
and RBS Securities Inc., and their respective successors, or if at any time any of the above is not
a primary U.S. Government securities dealer, any other nationally recognized investment banking
firm selected by the Company that is a primary U.S. Government securities dealer, as well as two
other nationally recognized investment banking firms selected by the Company that are primary U.S.
Government securities dealers.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date.
Remaining Scheduled Payments means, with respect to each Note to be redeemed, the remaining
scheduled payments of the principal thereof and interest thereon that would be due after the
related Redemption Date for such redemption; provided, however, that, if such Redemption Date is
not an Interest Payment Date with respect to such Note, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of interest accrued thereon to such
Redemption Date.
Treasury Rate means, for any Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to Maturity, computed as the second Business Day immediately preceding that
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 that 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 for the unredeemed portion hereof will be issued in the name of the holder hereof
upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Note or certain restrictive covenants and Events of Default with respect to this Note, in each
case upon compliance with certain conditions set forth in the Indenture.
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 be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the holders of the
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 a majority in principal amount of the Notes at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
holders of specified percentages in principal amount of the 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 herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the holder of this Note shall
not have the right to institute any proceeding with respect to the Indenture or for the appointment
of a receiver or trustee or for any other remedy thereunder, unless such holder shall have
previously given the Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the holders of not less than 25% in principal amount of the Notes of this
series at the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity or
security reasonably satisfactory to it, and the Trustee shall not have received from the holders of
a majority in principal amount of Notes of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the holder of this Note for the enforcement of any payment of principal hereof
or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this 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 any premium 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 may be registered and this Note may be exchanged as provided in the
Indenture.
The Notes of this series are issuable only in registered form without coupons in denominations
of $2,000 and integral multiples of $1,000 in excess thereof.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this 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 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 of this series shall be governed by and construed in accordance with the laws of the
State of New York (including without limitation Section 5-1401 of the New York General Obligations
Law or any successor to such statute). The Trustee and the Company agree to submit to the
non-exclusive jurisdiction of any United States federal or state court located in the borough of
Manhattan, in the city of New York in any action or proceeding arising out of or relating to the
Notes.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Insert assignees social security or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint ___________________ as agent to
transfer this Note on the books of the Company. The agent may substitute another to act for him.
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Date: _____________
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NOTICE: The Signature must be guaranteed by an Institution which is a member of one of the
following recognized signature Guarantee Programs: (i) The Notes Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) such other guarantee program acceptable to the Trustee.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of an interest in this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of an interest in another Global Note or a Definitive Note
for an interest in this Global Note have been made:
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Amount of decrease in
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Amount of increase in
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Principal Amount of this
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Signature of authorized
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Principal Amount of this
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Principal Amount of this
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Global Note following
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signatory of Trustee or
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Date of Exchange
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Global Note
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Global Note
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such decrease or increase
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Notes Custodian
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