Exhibit 1.1
Execution Version
$450,000,000
Steelcase Inc.
5.125% Senior Notes due 2029
Underwriting Agreement
January 16, 2019
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
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c/o
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J.P. Morgan Securities LLC
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383 Madison Avenue
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New York, New York 10179
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Merrill Lynch, Pierce, Fenner & Smith
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Incorporated
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One Bryant Park
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New York, New York 10036
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Ladies and Gentlemen:
Steelcase Inc., a Michigan corporation (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto
(the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $450,000,000 aggregate principal amount of its 5.125% Senior Notes due 2029 having the terms set forth in Schedule 2 hereto (the “Securities”). The Securities
will be issued pursuant to an Indenture dated as of August 7, 2006 (the “Indenture”) between the Company and The Bank of New York Mellon Trust Company, N.A. (successor in interest to J.P. Morgan Trust Company, National Association), as trustee (the
“Trustee”).
1.
Registration
Statement
. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the
“Securities Act”), a registration statement on Form S-3 (File No. 333-229176), including a prospectus (the “Basic Prospectus”), relating to the debt securities to be issued from time to time by the Company. The Company has also filed, or proposes to
file, with the Commission pursuant to Rule 424 under the Securities Act a prospectus supplement specifically relating to the Securities (the “Prospectus Supplement”). The registration statement, as amended at the time it becomes effective, including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness, is referred to herein as the “Registration Statement”; and as used herein, the
term “Prospectus” means the Basic Prospectus as supplemented by the Prospectus Supplement in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of
the Securities and the term “Preliminary Prospectus” means the preliminary prospectus supplement specifically relating to the Securities together with the Basic Prospectus. Capitalized terms used but not defined herein shall have the meanings given
to such terms in the Registration Statement and Prospectus. References herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein. The terms “supplement,” “amendment” and “amend” as used herein with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed by the Company
under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (the “Exchange Act”) subsequent to the date of this Agreement which are deemed to be incorporated by reference therein. For purposes of
this Agreement, the term “Effective Time” means the effective date of the Registration Statement with respect to the offering of Securities, as determined for the Company pursuant to Section 11 of the Securities Act and Item 512 of Regulation S-K, as
applicable.
At or prior to the time when sales of the Securities will be first made (the “Time of Sale”), the Company will prepare certain information
(collectively, the “Time of Sale Information”) which information is identified in Schedule 3 hereto.
2.
Purchase of the
Securities by the Underwriters
. (a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements
set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price
equal to 98.563% of the principal amount thereof plus accrued interest, if any, from January 18, 2019 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(b)
Payment for and delivery of the Securities shall be made at the offices of Davis
Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017 at 10:00 A.M., New York City time, on January 18, 2019 or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the
Representatives and the Company may agree upon in writing. The time and date of such payment and delivery of the Securities is referred to herein as the “Closing Date.”
(c)
Payment for the Securities shall be made by wire transfer in immediately available
funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company, for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the
“Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.
(d)
The Company acknowledges and agrees that the Underwriters named in this Agreement
are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to any offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no such Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and such Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by such Underwriters named herein of the Company, the transactions contemplated thereby or other matters relating to such transactions will be performed solely for the benefit of the
Underwriters and shall not be on behalf of the Company.
3.
Representations and
Warranties of the Company
. The Company represents and warrants to each Underwriter that:
(a)
Registration Statement and Prospectus.
The Registration Statement has become effective under the Securities Act not earlier than three years prior to the date hereof. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge of the Company,
threatened by the Commission; as of the Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture Act”), and did not or will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and
as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company makes no
representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions in the
Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information relating to any Underwriter, as described on Schedule 5 hereto, furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein.
(b)
Time of Sale Information
. The Time of Sale Information, at the Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such
Time of Sale Information. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
(c)
Issuer Free Writing Prospectus
. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by
the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a)
of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Schedule 3 hereto as constituting the Time of Sale Information and (v) any electronic road show or other
written communications including the investor presentation listed on Schedule 6 hereto (the “investor presentation”), in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information at
the Time of Sale and at the Closing Date did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading;
provided
that the Company makes no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing
Prospectus or Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing
Prospectus or Time of Sale Information.
(d)
Incorporated Documents
. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, when filed with the Commission, conformed or will conform, as the
case may be, in all material respects with the requirements of the Exchange Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
,
however
,
that, as to future filings, such representations relate only to those filings made prior to the termination of the offering.
(e)
Financial Statements.
The consolidated financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus
comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly in all material respects the financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with U.S. generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby except as otherwise noted therein, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly in all material respects the information required to be
stated therein; and the other financial information included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Company and its subsidiaries
and presents fairly in all material respects the information shown thereby.
(f)
No Material Adverse Change.
Since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries, or, other than in the ordinary course of business, any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, financial position or results of
operations of the Company and its subsidiaries taken as a whole; (ii) other than in the ordinary course of business, neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory
authority that is material to the Company and its subsidiaries taken as a whole, except in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus.
(g)
Organization and Good Standing.
The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization,
are duly qualified to transact business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses, as described in the Registration Statement, the Time of Sale
Information and the Prospectus, requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or
have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole (a “Material
Adverse Effect”).
(h)
Capitalization.
The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization”; and all the
outstanding shares of capital stock or other equity interests of each wholly-owned subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for
directors’ qualifying shares and except as otherwise described in the Registration Statement, the Time of Sale Information and the Prospectus) and, with respect to the “Significant Subsidiaries” of the Company (as such term is defined in Rule 1-02(w)
of Regulation S-X promulgated under the Securities Act), are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(i)
Due Authorization.
The Company has full right, power and authority to execute and deliver this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to perform its
obligations hereunder and thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has
been duly and validly taken.
(j)
The Indenture.
The Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the Trust Indenture Act and, assuming due execution and delivery by the Trustee,
constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, whether enforceability is considered in a proceeding at law or equity (collectively, the
“Enforceability Exceptions”).
(k)
The Securities
. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of
the Indenture.
(l)
Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(m)
Descriptions of the Transaction Documents
. Each of the Transaction Documents conforms in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Information and
the Prospectus.
(n)
No Violation or Default.
Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or by-laws or similar organizational documents; and neither the Company nor any of its
subsidiaries is (i) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject; or (ii) in violation of any law or statute or any judgment, order, rule or regulation, applicable to the Company or its subsidiaries, of any court or arbitrator or governmental or regulatory authority; except, in the case of
clauses (i) and (ii) above, for any such default or violation that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(o)
No Conflicts.
The execution, delivery and performance by the Company of each of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, except, in each case, for any such conflict, breach or violation that would not,
individually or in the aggregate, have a Material Adverse Effect; (ii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority applicable to the
Company and its subsidiaries, except, in each case, for any such violation that would not, individually or in the aggregate, have a Material Adverse Effect; or (iii) result in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its Significant Subsidiaries.
(p)
No Consents Required
. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery
and performance by the Company of each of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated thereby, except for such consents,
approvals, authorizations, orders and registrations or qualifications (i) as have been obtained under the Securities Act and the Trust Indenture Act and (ii) as may be required under applicable state securities laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(q)
Legal Proceedings.
Except as described in the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings
pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is the subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect or adversely affect the consummation of the transactions contemplated by this Agreement; no such investigations, actions, suits or proceedings are, to the best knowledge of the Company, threatened or contemplated by any governmental or
regulatory authority or threatened by others; and (i) there are no current or, to the knowledge of the Company, pending legal, governmental or regulatory actions, suits or proceedings that are required under the Securities Act to be described in the
Registration Statement or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no contracts or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement that are not so filed as exhibits to the Registration Statement.
(r)
Independent Accountants.
Deloitte & Touche LLP, who has certified certain financial statements of the Company and its consolidated subsidiaries, is an independent registered public accounting firm with
respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(s)
Investment Company Act.
The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Registration Statement, the Time of
Sale Information and the Prospectus, will not be an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, “Investment Company Act”).
(t)
Status under the Securities Act
. The Company is not an ineligible issuer as defined under the Securities Act, at the times specified in the Securities Act in connection with the offering of the Securities. The
Company will pay the registration fee for this offering pursuant to Rule 456(b)(1)(i) under the Securities Act and in any event prior to the Closing Date.
(u)
Title to Intellectual Property.
Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) the Company and its subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) (collectively, “Intellectual Property”) described as material in the Company’s Annual Report on Form 10-K for the year ended February 23, 2018; (ii) the Company and its subsidiaries’
conduct of their respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property of any person; (iii) the Company and its subsidiaries have not received any written notice of any claim relating to Intellectual
Property; and (iv) to the knowledge of the Company, the Intellectual Property of the Company and their subsidiaries is not being infringed, misappropriated or otherwise violated by any person.
(v)
No Labor Disputes.
No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, has been threatened except as would not have a Material
Adverse Effect.
(w)
Compliance with Environmental Laws.
(i) Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, the Company and its subsidiaries (a) are in compliance with
any and all applicable federal, state, local and foreign laws, including common law, rules, regulations, requirements, decisions, judgements, decrees and orders relating to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (b) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses as currently conducted; (c) have not received notice of, and are not the subject of any claim regarding, any actual or potential liability under or relating to, or actual or potential
violation of, any Environmental Law, including for the investigation or remediation of any disposal, release or threat of release of any hazardous or toxic substances or wastes, pollutants or contaminants, and no event has occurred or condition
exists that would reasonably be expected to result in any such notice or claim; (d) are not a party to any order, decree, or agreement that imposes any obligation or liability under any Environmental Law; and (e) there are no costs or liabilities
associated with the Environmental Laws of or relating to the Company or its subsidiaries; and (ii) (a) there are no proceedings that are pending against the Company or any of its subsidiaries relating to or under any Environmental Laws in which a
governmental entity is also a party, other than any such proceeding or group of related proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (b) the Company and its subsidiaries are not
aware of any facts or issues regarding compliance with Environmental Laws that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (c) the
Company and its subsidiaries do not anticipate any material capital expenditures related to any Environmental Laws.
(x)
Disclosure Controls
. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that
information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls
and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries have carried out evaluations
of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(y)
Accounting Controls
. The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the
Exchange Act and have been designed by, or under the supervision of the Company’s principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, there
are no material weaknesses in the Company’s internal controls.
(z)
eXtensible Business Reporting Language Data
. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Time of Sale Information and
the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(aa)
No Unlawful Payments.
Except as would not be required to be disclosed in the Registration Statement, neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee or other person acting on behalf of the Company or any of its subsidiaries has, with respect to the business of the Company or any of its subsidiaries, (i) used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee,
including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for
political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or(iv) made, offered, agreed, requested or taken an act in furtherance of any
unlawful or improper payment, bribe, benefit, rebate, payoff, or kickback. The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures reasonably designed to promote and
ensure compliance with all applicable anti-bribery and anti-corruption laws.
(bb)
Compliance with Anti-Money Laundering Laws
. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements, including those applicable provisions of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts
business and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-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 Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(cc)
Compliance with Sanctions Laws.
None of the Company, any of its subsidiaries, directors or officers or, to the knowledge of the Company, any of its employees, agents, or affiliates of the Company or any of its
subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S.
Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union or Her Majesty’s Treasury (“HMT”), or other relevant
sanctions authority (collectively, “Sanctions”), nor is the Company, any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of comprehensive Sanctions, as of the date hereof, Cuba, Iran, North
Korea, Syria and Crimea (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any
activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or
otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was
the subject or target of Sanctions or with any Sanctioned Country, in each case, in violation of applicable Sanctions.
(dd)
Statistical and Market Data
. Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived from sources that the Company reasonably believes are reliable and accurate in all material respects; it being understood, however, that the Company
has not conducted any independent investigation of the accuracy thereof.
(ee)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002, as amended, 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.
(ff)
Cybersecurity
. (i)(x) To the knowledge of the Company, there has been no material unauthorized access (“Security Breach”) of or relating to any of the Company’s or its subsidiaries’ information technology and
computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data that is maintained by the Company), equipment or technology (collectively, “IT Systems and
Data”) and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any Security Breach to their IT Systems and Data; (ii) the Company and its
subsidiaries are presently in compliance with all applicable laws, statutes, rules and regulations, and any judgments or orders, of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations
relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in
the aggregate, have a Material Adverse Effect; and (iii) the Company and its subsidiaries have implemented commercially reasonable backup and disaster recovery technology.
4.
Further Agreements
of the Company
. The Company covenants and agrees with each Underwriter that:
(a)
Filings with the Commission.
The Company will file the Prospectus in a form approved by the Underwriters with the Commission pursuant to Rule 424 under the Securities Act not later than the close of business on
the second business day following the date of determination of the public offering price of the Securities or, if applicable, such earlier time as may be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act. The Company will
file any Issuer Free Writing Prospectus (including the Term Sheet substantially in the form of Schedule 4 hereto) to the extent required by Rule 433 under the Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free
Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may
reasonably request.
(b)
Delivery of Copies.
The Company will deliver, without charge, to each Underwriter during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus (if applicable) as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of
time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c)
Amendments or Supplements; Issuer Free Writing Prospectuses.
During the Prospectus Delivery Period, before using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for
review and will not use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d)
Notice to the Representatives.
During the Prospectus Delivery Period, the Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration
Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the
issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose
or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus,
the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; and (vi) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer
and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e)
Ongoing Compliance.
(1) If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish
to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser during the Prospectus Delivery Period, be misleading or so that the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event shall occur or
condition shall exist as a result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Time of Sale Information will comply with law.
(f)
Blue Sky Compliance.
The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of the Securities;
provided
that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g)
Earning Statement.
The Company will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration
Statement.
(h)
Clear Market.
During the period from the date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell or
otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than one year.
(i)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of
proceeds”.
(j)
No Stabilization.
The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Securities in violation of Regulation M under the Securities Act.
(k)
Filing of Exchange Act Documents.
The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery Period.
(l)
Record Retention
. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule
433 under the Securities Act.
5.
Certain Agreements of the Underwriters
.
Each Underwriter hereby represents and agrees that
(a)
It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act other than (i) a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act) that was not
previously included (including through incorporation by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed on Schedule 3 or prepared pursuant to Section 3(c)
or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”).
(b)
It has not and will not distribute any Underwriter Free Writing Prospectus referred
to in clause (a)(i) of this Section 5 in a manner reasonably designed to lead to its broad unrestricted dissemination.
(c)
It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Securities unless such terms have previously been included in a free writing prospectus filed with the Commission;
provided
that Underwriters may use a term sheet substantially in the form of Schedule 4 hereto without the consent of the Company;
provided
further
that any Underwriter using such term sheet shall notify the Company, and provide a copy of such term sheet to the Company prior to, or substantially concurrently with, the first use of such
term sheet.
(d)
It will, pursuant to reasonable procedures developed in good faith, retain copies of
each Underwriter Free Writing Prospectus in accordance with Rule 433 under the Securities Act.
(e)
It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering of the Securities (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
6.
Conditions of
Underwriters’ Obligations.
The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the
following additional conditions:
(a)
Registration Compliance; No Stop Order.
No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 8A under the Securities Act
shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent
required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b)
Representations and Warranties.
The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the
Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other
debt securities or preferred stock of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Section 3(a)(62) under the
Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock of or
guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d)
No Material Adverse Change.
No event or condition of a type described in Section 3(f) hereof shall have occurred or shall exist, which event or condition is not described in the Time of Sale Information
(excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e)
Officer’s Certificate.
The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and
is reasonably satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth
in Sections 3(a) and 3(b) hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f)
Comfort Letters.
On the date of this Agreement and on the Closing Date, Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Company, a letter, dated the respective date
of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g)
Opinion and 10b-5 Statement of Counsel for the Company.
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company, shall have furnished to the Representatives, at the request of the Company,
their written opinion and 10b-5 Statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(h)
Opinion and 10b-5 Statement of Counsel for the Underwriters.
The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 Statement of
Davis Polk & Wardwell LLP
,
counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i)
Opinion of Counsel.
Liesl A. Maloney, Assistant General Counsel and Assistant Secretary for the Company, shall have furnished to the Representatives her written opinion, dated the Closing Date and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(j)
No Legal Impediment to Issuance.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory
authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of
the Securities.
(k)
FinCEN Certificates
. On or prior to the date of this Agreement, the Representatives shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes
Enforcement Network (“FinCEN”) from the Company, in form and substance satisfactory to the Representatives, along with such additional supporting documentation as the Representatives have reasonably requested in connection with the verification of
the foregoing certificate.
(l)
Good Standing
. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions
of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(m)
Additional Documents.
On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
7.
Indemnification and
Contribution
.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for
use therein.
(b)
Indemnification of the Company.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the information identified in Schedule 5
hereto.
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which
indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing;
provided
that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 7 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 7. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding as incurred. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to
it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any
such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Company, its directors, its officers
who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of
any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e)
Limitation on Liability.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by
pro
rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by such Underwriter were offered to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
8.
Termination
.
This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general
moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the Representatives, is materialand adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Prospectus.
9.
Defaulting
Underwriter
. (a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Underwriter, either the non‑defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement
and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in this Agreement that, pursuant to this
Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b)
If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s
pro
rata
share (based on the principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c)
If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal
amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement
pursuant to this Section 9 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof
shall not terminate and shall remain in effect.
(d)
Nothing contained herein shall relieve a defaulting Underwriter of any liability it
may have to the Company or any non-defaulting Underwriter for damages caused by its default.
10.
Payment of
Expenses
.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will
pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any
taxes payable by the Company in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale
Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s
counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives
may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters), such fees and disbursements not to exceed $10,000); (vi) any fees charged by rating
agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing
with, and clearance of any offering by, the Financial Industry Regulatory Authority, Inc.; and (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors. It is understood, however, that except
as provided in this Section 10 and Section 7, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel and any advertising expenses connected with any offers they may make.
(b)
If (i) this Agreement is terminated pursuant to Section 8, (ii) the Company for any
reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters (other than defaulting
Underwriters pursuant to Section 9) for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
11.
Persons Entitled
to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the
affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision
contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
12.
Survival
.
The respective indemnities, rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or
any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company
or the Underwriters.
13.
Certain Defined
Terms
. For purposes of this Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on
which banks are permitted or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
14.
Recognition of the
U.S. Special Resolution Regimes
. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any
interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of
the United States or a state of the United States.
(b)
In the event that any Underwriter that is a Covered Entity or a
BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than
such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 14, (A) “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in
accordance with, 12 U.S.C. § 1841(k); (B) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (C) “Default Right” has the meaning assigned to that term in, and shall be interpreted
in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and (D) “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall
Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
15.
Miscellaneous
.
(a)
Authority of the Representatives.
Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices
to the Underwriters shall be given to the Representatives at the address set forth herein. Notices to the Company shall be given to it at: Rajesh K. Mehan, Vice President, Finance and Treasurer, Steelcase Inc., 901 44
th
Street SE, Grand Rapids, Michigan 49508 (fax: (616) 247-2374) and Liesl A. Maloney, Assistant General Counsel and Assistant Secretary, Steelcase Inc., 901 44
th
Street SE, Grand Rapids, Michigan 49508 (fax: (616) 246-4068).
(c)
Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and
signed by the parties hereto.
(e)
Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
(f)
Counterparts
. This Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided
below.
|
|
Very truly yours,
|
|
|
|
|
|
STEELCASE INC.
|
|
|
|
|
|
By:
|
/s/ David C. Sylvester
|
|
|
|
Name:
|
David C. Sylvester
|
|
|
|
Title:
|
Senior Vice President,
|
|
|
|
|
Chief Financial Officer
|
[
Signature page to the Underwriting Agreement
]
Accepted as of the date hereof
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Acting on behalf of themselves and
the several Underwriters listed
in Schedule 1 hereto.
|
J.P. MORGAN SECURITIES LLC
|
|
|
|
|
|
By
|
/s/ Som Bhattacharyya
|
|
|
|
Name:
|
Som Bhattacharyya
|
|
|
|
Title:
|
Executive Director
|
|
[
Signature page to the Underwriting Agreement
]
|
MERRILL LYNCH, PIERCE, FENNER & SMITH
|
|
|
INCORPORATED
|
|
|
|
|
|
By
|
/s/ Maxim Volkov
|
|
|
|
Name:
|
Maxim Volkov
|
|
|
|
Title:
|
Managing Director
|
|
[
Signature page to the Underwriting Agreement
]
Schedule 1
|
Underwriter
|
|
Principal Amount
|
|
|
J.P. Morgan Securities LLC
|
|
$
|
202,750,000.00
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
157,500,000.00
|
|
|
Wells Fargo Securities, LLC
|
|
|
24,750,000.00
|
|
|
HSBC Securities (USA) Inc.
|
|
|
24,750,000.00
|
|
|
Fifth Third Securities, Inc.
|
|
|
24,750,000.00
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
15,500,000.00
|
|
|
Total
|
|
$
|
450,000,000.00
|
|
Schedule 2
Representatives and Addresses for Notices:
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attn: Investment Grade Syndicate Desk, 3
rd
Floor
Facsimile: 212-834-6081
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza, NY1-050-12-01
New York, New York 10020
Attn: High Grade Debt Capital Markets Transaction Management/Legal
Facsimile: 212-901-7881
|
Certain Terms of the Securities:
|
|
|
|
|
|
Title of Securities:
|
5.125% Senior Notes due 2029
|
|
|
|
|
Aggregate Principal Amount of Securities:
|
$450,000,000
|
|
|
|
|
Maturity Date:
|
January 18, 2029
|
|
|
|
|
Interest Rate:
|
5.125%
|
|
|
|
|
Interest Payment Dates:
|
January 18 and July 18, commencing July 18, 2019
|
|
|
|
|
Record Dates:
|
January 1 and July 1
|
|
|
|
|
Optional Redemption:
|
Prior to October 18, 2028 (the “Par Call Date”), make-whole redemption at the Treasury Rate (as defined), plus 40 basis points, plus accrued and unpaid
interest.
|
|
|
|
|
|
On and after the Par Call Date, at a redemption price equal to 100% of the principal amount plus accrued and unpaid interest. See the preliminary
prospectus supplement for the definition of “Treasury Rate” and for further terms and provisions applicable to optional redemption and the calculation of the redemption price.
|
Schedule 3
a. Time of Sale Information
Preliminary Prospectus dated January 16, 2019
Term Sheet dated January 16, 2019
Schedule 4
Steelcase Inc.
5.125% Senior Notes due 2029
Pricing Term Sheet
This pricing term sheet (this “Pricing Term Sheet”) relates only to the securities described below and is qualified in its entirety by reference to (i) the
preliminary prospectus supplement (the “Preliminary Prospectus Supplement”) of Steelcase Inc., dated January 16, 2019, and (ii) the related base prospectus dated January 9, 2019 (the “Base Prospectus”), included in the registration statement (File
No. 333-229176), in each case, including the documents incorporated by reference therein. The information in this Pricing Term Sheet supplements the Preliminary Prospectus Supplement and the Base Prospectus and supersedes the information in the
Preliminary Prospectus Supplement and the Base Prospectus only to the extent it is inconsistent with the information contained therein. Capitalized terms used in this Pricing Term Sheet but not defined have the meanings given to them in the
Preliminary Prospectus Supplement.
|
Issuer:
|
Steelcase Inc.
|
|
|
|
|
Principal Amount:
|
$450,000,000
|
|
|
|
|
Maturity:
|
January 18, 2029
|
|
|
|
|
Coupon:
|
5.125%
|
|
|
|
|
Format:
|
SEC-Registered
|
|
|
|
|
Price to the Public:
|
99.213%
|
|
|
|
|
Yield to Maturity:
|
5.227%
|
|
|
|
|
Spread to Benchmark Treasury:
|
+ 250 basis points
|
|
|
|
|
Benchmark Treasury:
|
3.125% due November 15, 2028
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
103-13 / 2.727%
|
|
|
|
|
Interest Payment Dates:
|
January 18 and July 18, commencing July 18, 2019
|
|
|
|
|
Optional Redemption:
|
Prior to October 18, 2028 (the “Par Call Date”), make-whole redemption at the Treasury Rate, plus 40 basis points, plus accrued and unpaid interest.
On and after the Par Call Date, at a redemption price equal to 100% of the principal amount plus accrued and unpaid interest. See the preliminary
prospectus supplement for the definition of “Treasury Rate” and for further terms and provisions applicable to optional redemption and the calculation of the redemption price.
|
|
|
|
|
Trade Date:
|
January 16, 2019
|
|
|
|
|
Settlement Date:
|
January 18, 2019; T+2
|
|
|
|
|
CUSIP / ISIN:
|
858155AE4 / US858155AE40
|
|
|
|
|
Ratings
*
:
|
[Reserved]
|
|
|
|
|
Joint Book-Running Managers
:
|
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
|
|
Senior Co-Managers:
|
Wells Fargo Securities, LLC
HSBC Securities (USA) Inc.
Fifth Third Securities, Inc.
|
|
|
|
|
Co-Manager:
|
U.S. Bancorp Investments, Inc.
|
|
|
|
|
Use of Proceeds:
|
The issuer intends to use a portion of the net proceeds from the offering to fund the redemption of its 6.375% Senior Notes due 2021, of which $250
million in the aggregate principal amount is outstanding, and related fees and expenses. The issuer intends to use the remaining net proceeds for general corporate purposes.
|
*A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including the Base Prospectus) and the Preliminary Prospectus Supplement with the SEC for the
offering to which this communication relates. Before you invest, you should read the Base Prospectus in that registration statement, the Preliminary Prospectus Supplement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send
you the prospectus if you request it by calling J.P. Morgan Securities LLC collect at 1-212-834-4533 or Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at 1-800-294-1322.
Schedule 5
Under the caption “Underwriting” in the Prospectus, (i) the third paragraph, (ii) the third and fourth sentences of the seventh paragraph and (iii) the eighth
paragraph.
Schedule 6
Electronic (Netroadshow) investor presentation of the Company made available on January 16, 2019.
24
Steelcase Inc.
Officers’ Certificate
David C. Sylvester, Senior Vice President, Chief Financial Officer, and Rajesh K. Mehan, Vice President, Finance &
Treasurer, of Steelcase Inc., a Michigan corporation (the “Company”), pursuant to Sections 2.01 and 13.06 of the Indenture, dated as of August 7, 2006 (the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A.
(successor in interest to J.P. Morgan Trust Company, National Association), as trustee (the “Trustee”), each hereby certifies in the name of the Company as follows:
The aforesaid officers hereby establish, pursuant to resolutions duly adopted by the Board of Directors of the Company or a
committee thereof (true, correct and complete copies of such resolutions certified by the Assistant Secretary of the Company being separately delivered on the date hereof), a series of Securities (as that term is defined in the Indenture) to be
issued under the Indenture, which Securities shall be in the form attached hereto as
Exhibit A
with such terms and in such form as determined by or pursuant
to such resolutions, as follows:
1.
The title of the Securities shall be: “5.125% Senior
Notes due 2029” (the “Notes”).
2.
The aggregate principal amount of the Notes which may
be authenticated and delivered under the Indenture (except for Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Notes pursuant to or as contemplated by Section 2.05, 2.06, 2.07, 3.03 or
9.04 of the Indenture or Section 11 herein) shall initially be $450,000,000.
The Company may, from time to time, without giving notice or seeking the consent of the existing Holders of the Notes, issue additional
Securities having the same terms and conditions as the Notes, except for the issue date, issue price and, in some cases, the initial interest payment date;
provided
that if the additional Securities are not fungible with the Notes for U.S. federal income tax purposes, the additional Securities will have a separate CUSIP number, and any such additional Securities may be consolidated
and form a single series with the Notes.
3.
The Stated Maturity of the Notes shall be January 18,
2029.
4.
The Notes shall bear interest from January 18, 2019 or
from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, at the rate of 5.125% per annum, payable semiannually on January 18 and July 18 of each year (each, an “Interest Payment Date”),
commencing on July 18, 2019, to the persons in whose names the Notes are registered on the close of business on January 1 or July 1, as the case may be, next preceding such Interest Payment Date.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months.
5.
The Notes shall be the Company’s senior unsecured
obligations and shall rank equally in right of payment with all existing and future unsecured and unsubordinated debt of the Company.
6.
The principal of and interest on the Notes of such
series shall be payable at the office or agency of the Company maintained for such purpose in the Borough of Manhattan, The City of New York;
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 for such series.
7.
The Notes shall not have any provisions providing for
the extension of interest payment periods or the deferral of interest payments.
8.
The Notes shall be redeemable, in whole or in part, at
the Company’s option at any time or from time to time (a “Redemption Date”). The redemption price (the “Redemption Price”) will be equal to (a) at any time prior to October 18, 2028 (the “Par Call Date”) the greater of (i) 100% of the principal
amount of any Notes being redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date and calculated as if the maturity date of such
Notes was the Par Call Date) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus 40 basis points; and (b) at any time on or after the Par
Call Date, 100% of the principal amount of any Notes being redeemed. In addition, in each case, accrued and unpaid interest, if any, will be paid to, but not including, the Redemption Date.
Notwithstanding the foregoing, installments of interest on 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 in accordance with the Notes and the Indenture.
Notice of any redemption will be mailed or sent electronically at least 15 days, but not more than 60 days, before the Redemption Date to each
registered Holder of the Notes to be redeemed, except that notices of redemption may be delivered more than 60 days prior to a redemption date if the notice is issued in connection with a legal or covenant defeasance of the Notes pursuant to
Section 11.02 of the Indenture or a satisfaction and discharge of the Indenture pursuant to Section 11.01 of the Indenture. Once the notice is mailed, the Notes called for redemption will become due and payable on the Redemption Date and at the
applicable Redemption Price, plus accrued and unpaid interest to, but not including, the Redemption Date.
On and after the Redemption Date, interest will cease to accrue on the Notes or any portion of the Notes called for redemption (unless the
Company defaults in the payment of the Redemption Price and accrued interest). On or before the Redemption Date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the Redemption Price of, and accrued interest on,
the Notes to be redeemed on such Redemption Date. If less than all of the Notes are to be redeemed on such redemption Date, and the Notes are Global Securities then held by The Depository Trust Company (“DTC”), the Notes to be redeemed will be
selected by DTC in accordance with its standard procedures. If the Notes to be redeemed are not Global Securities then held by DTC, the Notes to be redeemed will be selected by the Trustee by lot.
As used above:
“Comparable Treasury Issue” means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable
to the remaining term of the Notes to be redeemed (assuming, for the purposes of this definition, that such Notes mature on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt notes of comparable maturity to the remaining term of the Notes (assuming, for the purposes of this definition, that such Notes mature on the Par Call Date).
“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 such Reference Treasury Dealer Quotations, or (B) if the Trustee is provided with fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations or (C) if
only one Reference Treasury Dealer Quotation is received, such quotation.
“Reference Treasury Dealer” means (A) any of J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (or their
respective affiliates which are Primary Treasury Dealers), and their respective successors;
provided
,
however
, that if any of those entities ceases to be a primary U.S. government securities dealer in New York City (a “Primary Treasury Dealer”), the Company will substitute
for those entities another Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s) selected by the Company.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company and 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.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
9.
The Notes shall not be entitled to any sinking fund or
analogous provisions.
10.
Section 4.07 of the Indenture shall not apply to the
Notes.
11.
Upon the occurrence of a Change of Control Triggering
Event (as defined below),
unless the Company has previously exercised its right to redeem the Notes in whole as described in Section 8
above, the Company shall notify the Trustee and make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event
or, at the Company’s option, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Company shall, or shall cause the Trustee to, send a notice to each Holder describing the transaction or
transactions that constitute or may constitute the Change of Control Triggering Event and stating: (1) that a Change of Control Offer is being made pursuant to this Section and that all Notes properly tendered will be accepted for payment; (2) the
purchase price and the purchase date, which shall be no earlier than 15 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”); (3) that any Notes not tendered will continue to accrue interest; (4)
that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders
electing to have any Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Global Security completed, purchased pursuant to a Change of Control Offer will be required to surrender such Notes to the Trustee or paying
agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Trustee or paying agent
receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing its election to have such Notes purchased; (7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 thereof; and (8) if sent prior to the date of consummation of the Change of Control, that the offer to
purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the Change of Control Payment Date specified in the notice.
The Company shall comply 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 Notes in connection with a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with this
Section, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section by virtue of such conflict.
On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Trustee or paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof properly tendered and (3) deliver or cause to be delivered
to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of such Notes or portions thereof being purchased by the Company. The Trustee or paying agent shall promptly pay to each Holder
of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered by such Holder, if any;
provided
, that each such new Note shall be in a principal amount of $2,000 or an integral
multiple of $1,000 thereof.
The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third Person makes the Change
of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section and all other provisions of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes
properly tendered and not withdrawn under such Change of Control Offer.
As used above:
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the 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 adoption of a plan relating to the liquidation or dissolution of the Company; (3) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of
our Voting Stock; or (4) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction shall not be deemed to result in a Change of Control if (a) the
Company becomes a wholly-owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s voting stock
immediately prior to that transaction.
“Change of Control Triggering Event” means the occurrence of both a
Change of Control and a
Rating Event.
“Moody’s” means Moody’s Investors Service, Inc.
“Rating Agency” means each of S&P and Moody’s, or if S&P or Moody’s or both shall not make a rating on the Securities publicly
available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a Board Resolution) which shall be substituted for S&P or Moody’s, or both, as the case may be.
“Rating Event” means with respect to a Change of Control, if the Notes carry immediately prior to the first public notice of an arrangement that
could result in a Change of Control:
(a)
an investment grade credit rating
(BBB-/Baa3, or equivalent, or better) from both Rating Agencies, the rating from both Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period
following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) is either
downgraded to a non-investment grade credit rating (BB+/Ba1 or equivalent, or worse) or withdrawn and is not within such period subsequently (in the case of a downgrade) upgraded to an investment grade credit rating or (in the case of a withdrawal)
replaced by an investment grade credit rating;
(b)
a non-investment grade credit rating
(BB+/Ba1, or equivalent, or worse) from both Rating Agencies, the rating from both Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period
following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) is either
downgraded by one or more notches (for illustration, Ba1 to Ba2 being one notch) or withdrawn and is not within such period subsequently (in the case of a downgrade) upgraded to its earlier credit rating or better or (in the case of a withdrawal)
replaced by its earlier credit rating or better; or
(c)
both an investment grade credit
rating (BBB-/Baa3, or equivalent, or better) from one Rating Agency and a non-investment grade credit rating (BB+/Ba1, or equivalent, or worse) from the other Rating Agency and (i) the investment grade credit rating on any date from the date of the
public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes
is under publicly announced consideration for possible downgrade by either Rating Agency) is either downgraded to a non-investment grade credit rating (BB+/Ba1, or equivalent, or worse) or withdrawn and is not within such period subsequently (in
the case of a downgrade) upgraded to an investment grade credit rating by such Rating Agency or (in the case of a withdrawal) replaced by an investment grade credit rating from such Rating Agency and (ii) the non-investment grade credit rating on
any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so
long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) is either downgraded by one or more notches (for illustration, Ba1 to Ba2 being one notch) or withdrawn and is not within such
period subsequently (in the case of a downgrade) upgraded to its earlier credit rating or better by such Rating Agency or (in the case of a withdrawal) replaced by its earlier credit rating or better by such Rating Agency;
provided
that in making the relevant
decision(s) referred to above to downgrade or withdraw such ratings, as applicable, the relevant Rating Agency announces publicly or confirms in writing to the Company that such decision(s) resulted, in whole or in part, from the occurrence of such
Change of Control or the first public notice of an arrangement that could result in a Change of Control.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc.
12.
The Notes shall be issued initially in the form of a
registered Global Security which shall be deposited with, or on behalf of, DTC, as depositary, and registered in the name of Cede & Co., as DTC’s nominee, or shall remain in the custody of the Trustee on behalf of DTC or DTC’s nominee.
Beneficial interests in the Global Security shall be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct and indirect participants in DTC. Investors may elect to hold interests in the
Global Security through DTC, if they are participants of DTC, or indirectly through organizations which are participants in these systems.
13.
Principal of and interest on the Notes shall be
payable in U.S. dollars.
14.
The Notes shall not be convertible into or
exchangeable for shares of common stock, preferred stock or other securities or property of the Company.
15.
The Trustee shall initially be the Paying Agent,
Transfer Agent and Security Registrar for the Notes. The Security Register for the Notes shall be maintained by the Security Registrar in the Borough of Manhattan, The City of New York.
16.
The Notes shall initially constitute Global Securities
(as defined in the Indenture).
17.
The Notes shall be issued in denominations of $2,000
and any integral multiple of $1,000 in excess thereof.
18.
The Notes shall be defeasible pursuant to Section
11.02 of the Indenture. Any such defeasance election shall be evidenced by a Board Resolution.
19.
Unless the context otherwise requires, for purposes of
the Notes, an accounting term used in this Certificate, the Indenture or the Notes and not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles as in effect on the date of the
applicable calculation or determination.
20.
In case of any conflict between this Certificate and
the Notes in the form referred to above, the Notes shall control. In case of any conflict between this Certificate and the Indenture, this Certificate shall control to the extent permitted by the Indenture.
Each of the aforesaid officers further states pursuant to Sections 2.01 and 13.06 of such Indenture that (i) he has read the
applicable covenants and conditions related to the issuance, authentication and delivery of the Notes provided for in the Indenture and the respective definitions relating thereto; (ii) the statements made in this Certificate are based upon the
examination or investigation of the applicable provisions of the Indenture and the relevant books and records of the Company; (iii) in his opinion, he has made such examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenants or conditions related to the issuance, authentication and delivery of the Notes pursuant to the Indenture have been complied with; and (iv) in his opinion, such conditions and covenants have been complied
with.
Capitalized terms defined in the Indenture and not otherwise defined herein have the respective meanings provided for
therein.
IN WITNESS WHEREOF, we have hereunto signed our names on behalf of the Company this 18th day of January, 2019.
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STEELCASE INC.
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By:
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/s/ David C. Sylvester
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Name:
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David C. Sylvester
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Title:
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Senior Vice President, Chief Financial Officer
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By:
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/s/ Rajesh K. Mehan
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Name:
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Rajesh K. Mehan
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Title:
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Vice President, Finance & Treasurer
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Officers’ Certificate
Exhibit A
5.125% SENIOR NOTE DUE 2029
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR THE NOMINEE OF A DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, TO STEELCASE INC. (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.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.11 OF THE INDENTURE, THIS SECURITY MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO ANOTHER
NOMINEE OF DTC OR TO A SUCCESSOR DEPOSITARY SELECTED AND APPROVED BY THE COMPANY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
STEELCASE INC.
5.125% Senior Note Due 2029
CUSIP NO. 858155 AE4
ISIN NO. US858155AE40
STEELCASE INC., a corporation duly organized and existing under the laws of Michigan (herein called the “Company”, which term
includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of $450,000,000 (FOUR HUNDRED FIFTY MILLION U.S. DOLLARS) on January 18,
2029, and to pay interest thereon from January 18, 2019 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually on January 18 and July 18 in each year (each, an “Interest Payment Date”),
commencing on July 18, 2019 at the rate of 5.125% per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the
Indenture hereinafter referred to, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest, which shall be the immediately
preceding 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 that is not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on
such regular record date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a special record date for the payment of such Defaulted Interest to be fixed
by the Trustee which special record date shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after receipt by the Trustee of the notice of proposed payment, notice of which shall be
given to Holders of Securities of this series not less than 10 days prior to such special record date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of
this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payments of interest on this Security shall include interest accrued to but excluding the respective Interest Payment Dates.
Interest payments for this Security shall be computed and paid on the basis of a 360-day year consisting of twelve 30-day months. In the event that any date on which interest is payable on this Security is not a Business Day, then payment of the
interest payable on such date shall be made on the next succeeding day that is a Business Day, with the same force and effect as if made on the date the payment was originally payable.
The Company shall maintain in the Borough of Manhattan, The City of New York, an office or agency where this Security may be
surrendered for registration of transfer or exchange and an office or agency where this Security may be presented for payment or for exchange. The Company has initially appointed The Bank of New York Mellon Trust Company, N.A. as its Registrar,
Transfer Agent and Paying Agent. On the date hereof, the office of the Registrar, Transfer Agent and Paying Agent is located at 2 N. LaSalle Street, Suite 700 Chicago, IL 60602. The Company reserves the right at any time to vary or terminate the
appointment of any Paying Agent, Transfer Agent or Registrar, to appoint additional or other Paying Agents or other Registrars and to approve any change in the office through which any Paying Agent, Transfer Agent or Registrar acts. The principal
of and interest on this Security shall be paid 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. Payment of interest (including interest on an Interest
Payment Date) shall be made, subject to such surrender where applicable, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
The Notes (as defined on the reverse hereof) shall be senior unsecured obligations of the Company and shall rank equally in
right of payment with all of the other senior unsecured and unsubordinated indebtedness of the Company from time to time outstanding. The Notes shall rank senior in right of payment to any subordinated indebtedness of the Company.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Security 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 under its corporate seal.
Dated: _____________ ___, 2019
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STEELCASE INC.
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By:
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Name:
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Title:
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Trustee’s Certificate Of Authentication
This is one of the Securities of the series
designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
[REVERSE SIDE OF NOTE]
This Security is one of a duly authorized issue of Securities of the Company issued and issuable in one or more series under an Indenture dated
as of August 7, 2006 (the “Indenture”; capitalized terms used and not defined herein shall have the meaning ascribed to such terms in the Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A. (successor in interest to
J.P. Morgan Trust Company, National Association), as Trustee (the “Trustee,” which term includes any successor trustee under the Indenture), to which Indenture reference is hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities issued thereunder and of the terms upon which said Securities are, and are to be, authenticated and delivered. This Security is one of the
series of Securities of the Company issued pursuant to the Indenture and designated as “5.125% Senior Notes due 2029” (the “Notes”), initially limited in aggregate principal amount to $450,000,000. The Company may, from time to time, without giving
notice or seeking the consent of the existing Holders of the Notes, issue additional Securities having the same terms and conditions as the Notes, except for the issue date, issue price and, in some cases, the initial interest payment date;
provided
that if the additional Securities are not fungible with the Notes for U.S. federal income tax purposes, the additional Securities will have
a separate CUSIP number, and any such additional Securities may be consolidated and form a single series with the Notes.
Notes in Definitive Form
This Security is exchangeable in whole or from time to time in part for Notes of this series in definitive registered form only as provided
herein and in the Indenture. If (1) at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Security or if at any time the Depositary shall no longer be registered or in good standing under
the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, and a successor Depositary is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the
case may be, (2) an Event of Default has occurred and is continuing with regard to the Notes represented by this Security or (3) the Company determines that this Security shall no longer be represented by a Global Security and executes and delivers
to the Trustee an Officers’ Certificate evidencing such determination, this Security shall be exchangeable for Notes of this series in definitive registered form;
provided
that the definitive Notes so issued in exchange for this Security shall be in any approved denominations requested by or on behalf of the Depositary, without coupons, and in an aggregate principal amount equal
to the principal amount of this Security to be exchanged. Except as provided above, owners of beneficial interests in this Security shall not be entitled to have Notes registered in their names, shall not receive or be entitled to physical delivery
of Notes in definitive registered form and shall not be considered the Holders thereof for any purpose under the Indenture.
Default
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in
the manner, with the effect and subject to the conditions provided in the Indenture.
Amendment and Modification
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 under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also permits the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
Optional Redemption of the Notes
The Notes shall be redeemable, in whole or in part, at the Company’s option at any time or from time to time (a “Redemption Date”). The
redemption price (the “Redemption Price”) will be equal to (a) at any time prior to October 18, 2028 (the “Par Call Date”) the greater of (i) 100% of the principal amount of any Notes being redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date and calculated as if the maturity date of such Notes was the Par Call Date) discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below), plus 40 basis points; and (b) at any time on or after the Par Call Date, 100% of the principal amount of any Notes being redeemed. In addition,
in each case, accrued and unpaid interest, if any, will be paid to, but not including, the Redemption Date.
Notwithstanding the foregoing, installments of interest on 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 in accordance with the Notes and the Indenture.
Notice of any redemption will be mailed or sent electronically at least 15 days, but not more than 60 days, before the Redemption Date to each
registered Holder of the Notes to be redeemed, except that notices of redemption may be delivered more than 60 days prior to a redemption date if the notice is issued in connection with a legal or covenant defeasance of the Notes pursuant to
Section 11.02 of the Indenture or a satisfaction and discharge of the Indenture pursuant to Section 11.01 of the Indenture. Once the notice is mailed, the Notes called for redemption will become due and payable on the Redemption Date and at the
applicable Redemption Price, plus accrued and unpaid interest to, but not including, the Redemption Date.
On and after the Redemption Date, interest will cease to accrue on the Notes or any portion of the Notes called for redemption (unless the
Company defaults in the payment of the Redemption Price and accrued interest). On or before the Redemption Date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the Redemption Price of, and accrued interest on,
the Notes to be redeemed on such Redemption Date. If less than all of the Notes are to be redeemed on such redemption Date, and the Notes are Global Securities then held by DTC, the Notes to be redeemed will be selected by DTC in accordance with
its standard procedures. If the Notes to be redeemed are not Global Securities then held by DTC, the Notes to be redeemed will be selected by the Trustee by lot.
As used above:
“Comparable Treasury Issue” means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable
to the remaining term of the Notes to be redeemed (assuming, for the purposes of this definition, that such Notes mature on the Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt notes of comparable maturity to the remaining term of the Notes (assuming, for the purposes of this definition, that such Notes mature on the Par Call Date).
“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 such Reference Treasury Dealer Quotations, or (B) if the Trustee is provided with fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations or (C) if
only one Reference Treasury Dealer Quotation is received, such quotation.
“Reference Treasury Dealer” means (A) any of J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated (or their
respective affiliates which are Primary Treasury Dealers), and their respective successors;
provided
,
however
, that if any of those entities ceases to be a primary U.S. government securities dealer in New York City (a “Primary Treasury Dealer”), the Company will substitute
for those entities another Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s) selected by the Company.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company and 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.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
Sinking Fund
The Notes shall not be entitled to any sinking fund or analogous provisions.
Repurchase at the Option of Holders
Section 4.07 of the Indenture shall not apply to the Notes.
Upon the occurrence of a Change of Control Triggering Event (as defined below),
unless the Company has previously exercised its right to redeem the Notes in whole as described above under “Optional Redemption of the Notes”, the Company shall notify the Trustee and make
an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to, but not including, the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the Company’s option, prior to any Change of
Control, but after the public announcement of an impending Change of Control, the Company shall, or shall cause the Trustee to, send a notice to each Holder describing the transaction or transactions that constitute or may constitute the Change of
Control Triggering Event and stating: (1) that a Change of Control Offer is being made pursuant to this Section and that all Notes properly tendered will be accepted for payment; (2) the purchase price and the purchase date, which shall be no
earlier than 15 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”); (3) that any Notes not tendered will continue to accrue interest; (4) that, unless the Company defaults in the payment of the
Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have any Notes, with the form entitled “Option
of Holder to Elect Purchase” attached hereto completed, purchased pursuant to a Change of Control Offer will be required to surrender such Notes to the Trustee or paying agent at the address specified in the notice prior to the close of business on
the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Trustee or paying agent receives, not later than the close of business on the second Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing its election to have
such Notes purchased; (7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in
principal amount or an integral multiple of $1,000 thereof; and (8) if sent prior to the date of consummation of the Change of Control, that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the
Change of Control Payment Date specified in the notice.
The Company shall comply 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 Notes in connection with a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with this
Section, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section by virtue of such conflict.
On the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Trustee or paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions thereof properly tendered and (3) deliver or cause to be delivered
to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of such Notes or portions thereof being purchased by the Company. The Trustee or paying agent shall promptly pay to each Holder
of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered by such Holder, if any;
provided
, that each such new Note shall be in a principal amount of $2,000 or an integral
multiple of $1,000 thereof.
The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third Person makes the Change
of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section and all other provisions of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes
properly tendered and not withdrawn under such Change of Control Offer.
As used above:
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the 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 adoption of a plan relating to the liquidation or dissolution of the Company; (3) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of
our Voting Stock; or (4) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction shall not be deemed to result in a Change of Control if (a) the
Company becomes a wholly-owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Company’s voting stock
immediately prior to that transaction.
“Change of Control Triggering Event” means the occurrence of both a
Change of Control and a
Rating Event.
“Moody’s” means Moody’s Investors Service, Inc.
“Rating Agency” means each of S&P and Moody’s, or if S&P or Moody’s or both shall not make a rating on the Securities publicly
available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a Board Resolution) which shall be substituted for S&P or Moody’s, or both, as the case may be.
“Rating Event” means with respect to a Change of Control, if the Notes carry immediately prior to the first public notice of an arrangement that
could result in a Change of Control:
(a)
an investment grade credit rating
(BBB-/Baa3, or equivalent, or better) from both Rating Agencies, the rating from both Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period
following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) is either
downgraded to a non-investment grade credit rating (BB+/Ba1 or equivalent, or worse) or withdrawn and is not within such period subsequently (in the case of a downgrade) upgraded to an investment grade credit rating or (in the case of a withdrawal)
replaced by an investment grade credit rating;
(b)
a non-investment grade credit rating
(BB+/Ba1, or equivalent, or worse) from both Rating Agencies, the rating from both Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period
following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) is either
downgraded by one or more notches (for illustration, Ba1 to Ba2 being one notch) or withdrawn and is not within such period subsequently (in the case of a downgrade) upgraded to its earlier credit rating or better or (in the case of a withdrawal)
replaced by its earlier credit rating or better; or
(c)
both an investment grade credit
rating (BBB-/Baa3, or equivalent, or better) from one Rating Agency and a non-investment grade credit rating (BB+/Ba1, or equivalent, or worse) from the other Rating Agency and (i) the investment grade credit rating on any date from the date of the
public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes
is under publicly announced consideration for possible downgrade by either Rating Agency) is either downgraded to a non-investment grade credit rating (BB+/Ba1, or equivalent, or worse) or withdrawn and is not within such period subsequently (in
the case of a downgrade) upgraded to an investment grade credit rating by such Rating Agency or (in the case of a withdrawal) replaced by an investment grade credit rating from such Rating Agency and (ii) the non-investment grade credit rating on
any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so
long as the rating of the Notes is under publicly announced consideration for possible downgrade by either Rating Agency) is either downgraded by one or more notches (for illustration, Ba1 to Ba2 being one notch) or withdrawn and is not within such
period subsequently (in the case of a downgrade) upgraded to its earlier credit rating or better by such Rating Agency or (in the case of a withdrawal) replaced by its earlier credit rating or better by such Rating Agency;
provided
that in making the relevant
decision(s) referred to above to downgrade or withdraw such ratings, as applicable, the relevant Rating Agency announces publicly or confirms in writing to the Company that such decision(s) resulted, in whole or in part, from the occurrence of such
Change of Control or the first public notice of an arrangement that could result in a Change of Control.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc.
Miscellaneous
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on this Security at the time, place and rate, and in the coin or currency, herein and in the Indenture prescribed.
Any money that the Company deposits with the Trustee or any Paying Agent or that the Company holds in trust for the payment of principal or any
interest on this Note that remains unclaimed for two years after the date upon which the principal and interest are due and payable, shall be repaid to the Company on May 31 of each year or (if then held by the Company) discharged from the trust.
After that time, unless otherwise required by mandatory provisions of any unclaimed property law, the Holder of this Security shall be able to seek any payment to which such Holder may be entitled to collect only from the Company.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender for transfer of this Security at the office or agency of the Company designated for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company or the Registrar and
duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of the same series as the Security presented for a like aggregate amount, shall be issued to the designated transferee or
transferees. No service charge shall be made for any such exchange or registration of transfer, but the Company shall require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee, any Paying Agent and the Registrar may deem
and treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the
Registrar, and none of the Company, the Trustee, any Paying Agent or the Registrar shall be affected by notice to the contrary.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same upon
surrender of the Note or Notes to be exchanged at the office or agency of the Company.
No recourse shall be had for payment of the principal of or interest on this Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
THIS SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to the Change of Control Offer (as defined in the Global Security
certificate), check the box below:
☐
Change of Control Offer
If you want to elect to have only part of the Note purchased by the Company pursuant to the Change of Control Offer, state the amount you elect
to have purchased: $
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Date:
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Your Signature:
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(Sign exactly as your name appears on the face of the Note)
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Tax Identification No:
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Signature Guarantee*:
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(*Participant in a Recognized Signature Guarantee Medallion Program)
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