Exhibit 1.1
Becton, Dickinson and Company
Debt Securities
Underwriting Agreement
August 10, 2021
Barclays Bank PLC
BNP Paribas
Citigroup Global Markets Limited
Goldman Sachs & Co. LLC
J.P. Morgan Securities plc
Morgan Stanley & Co. International plc
MUFG Securities (Europe) N.V.
The Bank of Nova Scotia, London Branch
Wells Fargo Securities International Limited
BNY Mellon Capital Markets, LLC
ING Bank N.V., Belgian Branch
Intesa Sanpaolo S.p.A.
Loop Capital Markets LLC
PNC Capital Markets LLC
Siebert Williams Shank & Co., LLC
Standard Chartered Bank
TD Global Finance unlimited company
U.S. Bancorp Investments, Inc.
c/o Barclays Bank PLC
5 The North Colonnade, Canary Wharf
London E14 4BB, United Kingdom
c/o BNP Paribas
16, Boulevard des Italiens
75009 – Paris
France
c/o Citigroup Global Markets Limited
Citigroup Centre, Canada Square, Canary Wharf
London E14 5LB, United Kingdom
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198 United States
c/o J.P. Morgan Securities plc
25 Bank Street, Canary Wharf
London, E14 5JP, United Kingdom
c/o Morgan Stanley & Co. International plc
25 Cabot Square, Canary Wharf
London E14 4QA
United Kingdom
c/o MUFG Securities (Europe) N.V.
World Trade Center, Tower H, 11th Floor
Zuidplein 98, 1077XV Amsterdam
c/o The Bank of Nova Scotia, London Branch
201 Bishopsgate
6th Floor
London EC2M 3NS
United Kingdom
c/o Wells Fargo Securities International Limited
33 King William Street
London EC4R 9AT
United Kingdom
c/o BNY Mellon Capital Markets, LLC
240 Greenwich Street
New York, NY 10286
United States
c/o ING Bank N.V., Belgian Branch
24 Avenue Marnix
1000 Brussel
Belgium
c/o Intesa Sanpaolo S.p.A.
Divisione IMI Corporate & Investment Banking
Via Manzoni, 4
20121 Milan
Italy
c/o Loop Capital Markets LLC
111 West Jackson Boulevard
Ste 1901
Chicago, IL 60604
United States
c/o PNC Capital Markets LLC
300 Fifth Avenue
Pittsburgh, PA 15222 Allegheny
United States
c/o Siebert Williams Shank & Co., LLC
100 Wall Street
18th Floor
New York, New York 10005
United States
c/o Standard Chartered Bank
1095 Avenue of the Americas,
Ste 38
New York, NY 10036
United States
c/o TD Global Finance unlimited company
5th Floor, One Molesworth Street
Dublin 2, D02 RF29
Ireland
c/o U.S. Bancorp Investments, Inc.
60 Livingston Avenue
Ep-mn-wn3c
Saint Paul, MN 55107
United States
Ladies and Gentlemen:
Becton Dickinson and Company, a
New Jersey corporation (the “Company”) proposes, subject to the terms and conditions stated herein, to issue and sell to the underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of (i) €400,000,000 principal amount of its 0.000%
Notes due 2023 (the “2023 Notes”) and (ii) €500,000,000 principal amount of its 0.034% Notes due 2025 (the “2025 Notes” and, together with the 2023 Notes, the “Securities”). The Securities are to be issued pursuant to the Indenture, dated as of March
1, 1997 (the “Base Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan Chase Bank, N.A.), as trustee (the “Trustee”) (the “Indenture”).
1. The Company represents
and warrants to, and agrees with each of the Underwriters that:
(a)
An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-255829) in respect of the Securities has been filed with the
Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been initiated or, to the Company’s knowledge, threatened by the Commission, and no notice of
objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement,
in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to
the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including any
prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are
hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of
the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities
filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Basic Prospectus, such
Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is
hereinafter called an “Issuer Free Writing Prospectus”);
(b)
No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein;
(c)
For the purposes of this Agreement, the “Applicable Time” is 9:20 p.m. (London time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section
5(a) hereof, taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not 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 under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto, if any, does not conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not 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 under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions
made in the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein;
(d)
The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of business on the
business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b) hereto;
(e)
The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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 case of the Prospectus, in the light
of the circumstances under which they were made) not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter expressly for use therein;
(f)
Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, which
event is material to the Company and its subsidiaries, taken as a whole; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the capital stock
(other than the issuance of shares under the Company’s employee benefit or stock purchase plans or upon conversion of outstanding convertible preferred stock of the Company) or long term obligations of the Company and its subsidiaries which are
material taken as a whole or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(g)
The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Jersey, with power and authority (corporate and other) to own its properties and
conduct its business as described in the Pricing Prospectus, and is duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification; and each subsidiary of the Company has been duly incorporated or formed and is validly existing as a corporation or company in good standing (to the extent good standing is applicable in
such jurisdiction) under the laws of its jurisdiction of incorporation or formation and is duly qualified as a foreign corporation or company for the transaction of business and in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such qualification, except in those instances with respect to the Company and its subsidiaries where failure to be so qualified or in good standing would not have a material
adverse effect on the business or financial condition of the Company and its subsidiaries taken as a whole;
(h)
The Company has an authorized capitalization as set forth in the Pricing Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and
non-assessable and all of the issued shares of capital stock or ownership interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and, to the extent applicable, non-assessable and (except for
directors’ qualifying shares and minority interests reflected in the Company’s consolidated financial statements included or incorporated in the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims;
(i)
The Securities have been duly authorized and, when issued and delivered pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture, under which they are to be issued, which is substantially in the form filed as an exhibit to the Registration Statement or such other form as shall have previously been
agreed to by you; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Securities and the Indenture will conform to the descriptions thereof in the Pricing Disclosure
Package and the Prospectus;
(j)
The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, 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, result in any violation of the provisions of the
Certificate of Incorporation, as amended, or Bylaws of the Company or result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the Indenture except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(k)
The statements set forth in the Pricing Prospectus and the Prospectus under the caption “Description of Notes” insofar as they purport to constitute a summary of the terms of the Securities and the Indenture, and under
the caption “Underwriting”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair;
(l)
Other than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which would individually or in the aggregate reasonably be expected to have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; and there is no legal or governmental proceeding to which the Company
or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject that would be required to be disclosed in the Registration Statement, the Pricing Prospectus or the Prospectus and is not so
disclosed;
(m)
The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an “investment company”, as such term is defined in the Investment Company
Act of 1940, as amended;
(n) (i) (A) At the time of filing
the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on
the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (ii) at the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(o)
Ernst & Young LLP, who have audited certain financial statements of the Company and its subsidiaries and have audited the Company’s internal control over financial reporting, are an independent registered public
accounting firm in respect of the Company as required by the Act and the rules and regulations of the Commission thereunder;
(p)
The financial statements and the related notes thereto included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the rules and regulations thereunder, 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 generally accepted accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, when read in conjunction with the related financial statements,
present fairly in all material respects the information required to be stated therein; and the other financial information included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus
has been derived from the accounting records of the Company and its subsidiaries and presents fairly in all material respects, on the basis stated therein, the information shown thereby. The interactive data in eXtensbile Business Reporting Language
included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and
guidelines applicable thereto;
(q)
The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been
designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles. The Company believes its internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over
financial reporting;
(r)
Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus and except as set forth in the Pricing Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;
(s)
The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in stabilization or manipulation of the price of any securities
of the Company in connection with the offering of the Securities;
(t)
The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures
have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure
controls and procedures are effective;
(u)
(i) Neither the Company nor any of its subsidiaries or affiliates, nor, to the Company’s knowledge, any director, manager, officer, employee, agent or representative of the Company or of any of its subsidiaries or
affiliates, has taken or will take any action on behalf of the Company in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or
indirectly, to any “government official” (including any officer or employee of a government or 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) to influence official action or secure an improper advantage in favor of the Company; and (ii) the Company and its subsidiaries and affiliates have conducted
their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and
warranty contained herein; (iii) and no part of the proceeds of the offering is intended to be used, directly or indirectly, in violation of any applicable anti-corruption law except in case of (i)-(iii), as would not be expected to have a material
adverse effect on the Company and its subsidiaries taken as a whole or on the transactions contemplated herein;
(v)
To the Company’s knowledge, the operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money
laundering statutes of jurisdictions where each of the Company and its subsidiaries conduct business, 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 best knowledge of the Company, threatened;
(w)
(i) The Company represents that neither the Company nor any of its subsidiaries (collectively, the “Entity”) or, to the knowledge of the Entity, any director, manager or officer of the Entity, is an individual or
entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, or any similar sanctions imposed by any other
authority to which the Entity is currently subject (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria and Crimea);
(ii) The Entity represents and covenants that, except pursuant to appropriate government authorization or as exempted from such regulation, it will not, directly or indirectly, use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of
Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise); and
(iii)
The Entity represents and covenants that, except pursuant to appropriate government authorization or as exempted from such regulation, for the past three (3) years, it has not
knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions;
(iv)
The representation in this clause (w) is provided to (i) each Underwriter domiciled in the European Union only if and to the extent that it does not result in a violation of the
Council Regulation (EC) No. 2271/96 of 22 November 1996 (the “Blocking Regulation”) or any laws or regulations implementing the Blocking Regulation in any member state of the European Union and (ii) each Underwriter domiciled in the United Kingdom if
and to the extent that it does not result in a violation of the Blocking Regulation as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”) or any similar locking or anti-boycott law in the United Kingdom;
(x)
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) (x) to the Company’s knowledge after due inquiry, there has been no security breach or other compromise of or
relating to the Company’s or any of 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 maintained
by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) none of the Company or its subsidiaries have been notified of, or have any knowledge of any event that would reasonably be expected to result in, any
security breach or other compromise to their IT Systems and Data; (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations 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 clauses (i) and (ii), individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries taken as a whole; and (iii) the Company and its subsidiaries have implemented
backup and disaster recovery technology consistent with industry standards and practices;
(y)
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, all payments to be made by the Company under this Agreement shall be paid free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, imposed by the United States of America, or by any department, agency or other political subdivision or
taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto (collectively, “Taxes”); if any Taxes are required by law to be deducted or withheld in connection with such payments, the Company will
increase the amount paid so that the full amount of such payment is received by the Underwriters.
2. Subject to the terms
and conditions herein set forth, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of (i) 100.093% of the principal
amount of the 2023 Notes and (ii) 99.700% of the principal amount of the 2025 Notes, in each case plus accrued interest, if any, from August 13, 2021 to the Time of Delivery (as defined below) hereunder, the respective principal amounts of Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
3. Upon the
authorization by Barclays Bank PLC, BNP Paribas and Citigroup Global Markets Limited (the “Representatives”) of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth
in the Prospectus.
4. (a) Each series of
the Securities to be purchased by each Underwriter hereunder will be represented by one or more definitive global Securities in book-entry form which will be registered in the name of a nominee of Euroclear Bank S.A./N.V. (“Euroclear”) and
Clearstream Banking S.A. (“Clearstream”). Payment for the Securities shall be made by or on behalf of the Underwriters to the Company in immediately available funds in euro by wire transfer through a common depositary for Euroclear and Clearstream
(the “Common Depositary”) to the account specified by the Company to the Underwriters at least forty-eight hours in advance against delivery of the Securities to Underwriters, with any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid by the Company. The Company will cause the certificates representing the Securities to be made available to the Representatives for checking at least twenty-four hours prior to the Time of Delivery (as defined
below). The time and date of such delivery and payment shall be at or about 10:00 a.m., London time, on August 13, 2021 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called
the “Time of Delivery”.
(b) The documents to be
delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters pursuant to Section 8(j) hereof, will be
delivered at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, and the Securities will be delivered at the office of the Common Depository, all at the Time of Delivery. Final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the parties hereto on the Business Day next preceding the Time of Delivery. For the purposes of this Section 4, “Business Day” shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York City or London, England are generally authorized or obligated by law or executive order to close.
5.
The Company agrees with each of the Underwriters:
(a)
To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the date of
this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof;
to prepare a final term sheet, relating to the Securities, in a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by
the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities,
of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for any such purpose or pursuant to Section 8A of the Act, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or
for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts
to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own
expense, as may be necessary to permit offers and sales of the Securities by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);
(b)
If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by you promptly after reasonable notice thereof;
(c)
If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company will file, if it has not already
done so and is eligible to do so, a new automatic shelf registration statement relating to the Securities, in a form satisfactory to you. If at the Renewal Deadline the Company is no longer eligible to file an automatic shelf registration statement,
the Company will, if it has not already done so, file a new shelf registration statement relating to the Securities, in a form satisfactory to you and will use its best efforts to cause such registration statement to be declared effective within
180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the
Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be;
(d)
Promptly from time to time to take such action as you may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(e)
To furnish the Underwriters with written and electronic copies of the Prospectus in such quantities as you may from time to time reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, in connection with the offering or
sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus, or prior to availability of the
Prospectus, the Pricing Prospectus, or to file under the Exchange Act any document incorporated by reference in the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, or a supplement to the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, which will correct such statement
or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months
or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(f)
To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158 under
the Act);
(g)
During the period beginning from the date hereof and continuing to and including the later of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any debt securities of the Company which mature more than one year after such Time of Delivery and which are substantially similar to the
Securities;
(h)
To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Act;
(i)
To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”; and
(j)
To cooperate with the Underwriters in arranging for the Securities to be eligible for clearance and settlement through Euroclear and Clearstream.
6.
(a) (i) The Company represents and agrees that, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not made and will not make
any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter
represents and agrees that, without the prior consent of the Company and the Representatives, other than one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of Securities or any free writing
prospectus that would not be required to be filed with the Commission (including customary Bloomberg communications containing preliminary or final terms of the securities), it has not made and will not make any offer relating to the Securities that
would constitute a free writing prospectus; and
(iii) any such free writing
prospectus the use of which has been consented to by the Company and the Representatives (other than the final term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) hereto;
(b)
The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and
legending; and
(c)
The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information
in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances
then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document
which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter expressly for use therein.
7.
The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing, and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, the Indenture, any blue sky memorandum and
any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section
5(d) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with any blue sky survey; (iv) any fees charged by securities rating services for rating the
Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and any paying agent, registrar or depository and any agent of the Trustee or such paying agent and the fees and disbursements of counsel for the Trustee
and such paying agent in connection with the Indenture, the Securities; (vii) all expenses and application fees in connection with the listing of the Securities on the NYSE; (viii) all expenses and application fees in connection with the approval of
the Securities for eligibility for clearance and settlement through Euroclear and Clearstream; and (ix) all other costs and expenses incident to the Company’s performance of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this Section, and Sections 9 and 16 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, all expenses incurred by the
Underwriters in connection with any “road show”, transfer taxes on resale of any of the Securities by the Underwriters, and any advertising expenses connected with any offers they may make.
8.
The obligations of the Underwriters hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a)
The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act
shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received;
no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b)
Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to you, with respect to the incorporation
of the Company, the validity of the Indenture, the Securities, the Registration Statement, the Prospectus and other related matters as you may reasonably request, and the Company shall have furnished to such counsel such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c)
(i) The Assistant General Counsel for the Company and (ii) Skadden, Arps, Slate, Meagher & Flom LLP, acting as special counsel for the Company shall have furnished to you their respective written opinions (the
content of which is set forth in Annex I(a) and Annex I(b) hereto, respectively), dated the Time of Delivery, in form and substance reasonably satisfactory to you;
(d)
(i) At the time of the execution of this Agreement, Ernst & Young LLP, as auditors of the Company, shall have furnished to you a letter, dated such date, in form and substance satisfactory to you, to the effect set
forth in Annex II hereto; and (ii) at the Time of Delivery, Ernst & Young LLP shall have furnished to the Underwriters a letter, dated such Time of Delivery, in form and substance satisfactory to the Underwriters, to the effect that they reaffirm
the statements made in the relevant letter furnished pursuant to Section 8(d)(i) above, except that the specified date referred to shall be a date not more than three business days prior to the Time of Delivery;
(e)
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock (other than the issuance of shares under the Company’s employee benefit or stock
purchase plans or upon conversion of outstanding convertible preferred stock of the Company) or long term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(f)
On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined in
Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(g)
On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in
trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by Federal, New York State or European Union authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States or the European Union; or (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic conditions in the United States or the member states of the European Union or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated by the Prospectus;
(h)
The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream;
(i)
The Securities shall be duly listed and admitted for trading on the NYSE, subject to official notice of issuance;
(j)
The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the representations and warranties
of the Company herein at and as of such time, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (e) of this Section and as to such
other matters as you may reasonably request; and
(k)
The Company shall have furnished or caused to be furnished to you at the Time of Delivery a certificate from the chief financial officer of the Company reasonably satisfactory to you as to the absence of instruments or
agreements which limit or restrict the freedom of the Company to incur the indebtedness evidenced by the Notes.
If any of the conditions
specified in this Section 8 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to
the Representatives and counsel to the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be
delivered by this Section 8 shall be delivered at the office of Sullivan & Cromwell LLP, counsel for the Underwriters, at 125 Broad Street, New York, New York 10004, at the Time of Delivery.
9.
(a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use therein.
(b)
Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred. The Company acknowledges that the following statements under the caption “Underwriting” in the Prospectus (i) the seventh sentence of the sixth paragraph of text, concerning market making by the Underwriters,
(ii) the third paragraph of text, concerning the terms of the offering by the Underwriters and (iii) the eighth, ninth and tenth paragraphs of text, concerning stabilization, short-positions and penalty bids created by the Underwriters, constitute
the only information furnished in writing to the Company by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Pricing Disclosure Package and the Prospectus.
(c)
Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party) provided that in the event of such assumption the action may not be compromised or settled by the indemnifying party without the consent of the indemnified party, which consent shall not be unreasonably withheld.
After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party shall not be liable to the indemnified party pursuant to the
provisions of this Section 9 in respect of any action compromised or settled by the indemnified party, unless the written consent of the indemnifying party shall have been obtained to such compromise or settlement (which consent shall not be
unreasonably withheld).
(d)
If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and
not joint.
(e)
The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act and each broker-dealer affiliate of any Underwriter, and the directors, officers and selling agents of each Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition
to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the
Act.
10.
(a) If at the Time of Delivery, any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder, the Representatives may in their discretion arrange for any of the
Representatives or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities, then
the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within the respective
prescribed periods, the Representatives notify the Company that they have so arranged for the purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or
the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents
or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this
Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b)
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate
principal amount of such Securities which 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 which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c)
If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate
principal amount of Securities which 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 subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate if so decided by the Company upon notice to the Underwriters pursuant to Section 18 hereunder, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
11.
The Company hereby authorizes Barclays Bank PLC in its role as stabilizing manager (the “Stabilizing Manager”) to make adequate public disclosure regarding stabilization of the information required in relation to such
stabilization by Commission Delegated Regulation (EU) 2016/1052 of 8 March 2016 (the “Delegated Regulation”) and/or the Delegated Regulation as it forms part of domestic law by virtue of the EUWA, as applicable. The Stabilizing Manager for its own
account may, to the extent permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the
Stabilizing Manager shall act as principal and not as agent of the Company and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager.
However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Company to issue
in excess of the aggregate principal amount of Securities specified in Schedule I hereto. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and
directives.
12.
Solely for the purposes of the requirements of Article 9(8) of the MIFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of
manufacturers under the Product Governance Rules: (a) Citigroup Global Markets Limited (the “MIFID Manufacturer”) acknowledges that it understands the responsibilities conferred upon it under the Product Governance Rules relating to each of the
product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in any Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in connection
with the Securities; and (b) each of the other Underwriters and the Company note the application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the MIFID
Manufacturers and the related information set out in any Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in connection with the Securities.
13.
Solely for the purposes of the requirements of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”), regarding the mutual responsibilities of manufacturers
under the UK MiFIR Product Governance Rules:
(a)
Each of Barclays Bank PLC, BNP Paribas, Citigroup Global Markets Limited, Morgan Stanley & Co. International plc and J.P. Morgan Securities plc (each a “UK MiFIR Manufacturer” and together, the “UK MiFIR
Manufacturers”) acknowledges to each other UK MiFIR Manufacturer that it understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the
proposed distribution channels as applying to the Securities and the related information set out in any Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in connection with the Securities; and
(b)
Each of the other Underwriters and the Company note the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the
UK MiFIR Manufacturers and the related information set out in any Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in connection with the Securities.
14.
If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by
law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on
which final judgment is given. The obligation of the Company with respect to any sum due from it to any Underwriter or any person controlling any Underwriter or any broker-dealer affiliate of any Underwriter shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person or broker-dealer affiliate of such Underwriter of any sum in such other currency, and only to the
extent that such Underwriter or controlling person or broker-dealer affiliate of such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are
less than the sum originally due to such Underwriter or controlling person or broker-dealer affiliate of such Underwriter hereunder, the Company jointly and severally agree, as a separate obligation and notwithstanding any such judgment, to indemnify
such Underwriter or controlling person or broker-dealer affiliate of such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person or broker-dealer
affiliate of such Underwriter hereunder, such Underwriter or controlling person or broker-dealer affiliate of such Underwriter agrees to pay to the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such
Underwriter or controlling person or broker-dealer affiliate of such Underwriter hereunder.
15.
The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or
any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities.
16.
If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters for all out of pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Company shall not then be under further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
17.
The execution of this Agreement by all parties will constitute the Underwriters’ acceptance of the ICMA Agreement Among Managers Version 1/New York Schedule subject to any amendment notified to the Underwriters in
writing at any time prior to the execution of this Agreement. References to the “Managers” shall be deemed to refer to the Underwriters, references to the “Lead Manager” shall be deemed to refer to each of the Representatives and references to
“Settlement Lead Manager” shall be deemed to refer to Barclays Bank PLC. As applicable to the Underwriters, Clause 3 of the ICMA Agreement Among Managers Version 1/New York Schedule shall be deemed to be deleted in its entirety and replaced with
Section 10 of this Agreement.
18.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you in care of Barclays Bank PLC, 5 The
North Colonnade, Canary Wharf, London E14 4BB, United Kingdom, Attention: Debt Syndicate (tel: +44-207-773 9098, email: LeadManagedBondNotices@barclayscorp.com); BNP Paribas, 10 Harewood Avenue, London NW1 6AA, United Kingdom, Attention: Fixed Income
Syndicate; Citigroup Global Markets Limited, Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, United Kingdom, Attention: Syndicate Desk; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In accordance with the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which
information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
19.
This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 15 hereof, the officers and directors of the Company and each person
who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
20.
Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
21.
The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
22.
(a) As used in this Section 22 below, (i) “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant
implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; (ii) “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation
to the relevant Bail-in Legislation; (iii) “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended or superseded; (iv) “BRRD Liability” with respect to any
BRRD Party has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the Bail-in Legislation applicable to such BRRD Party; (v) “BRRD Party” means an institution or entity referred to in point (b), (c) or
(d) of Article 1(1) BRRD; (vi) “EU Bail-in Legislation Schedule” means the documents described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/; and
(vii) “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to a BRRD Party.
(b)
Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between any BRRD Party and the Company, the Company acknowledges and accepts that a BRRD
Liability arising under this Agreement may be subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by: (i) the effect of the exercise of Bail-in Powers by the Relevant
Resolution Authority in relation to any BRRD Liability of any BRRD Party to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof, (A) the reduction of all, or a
portion, of the BRRD Liability or outstanding amounts due thereon; (B) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD Party or another person (and the issue to or
conferral on the Company of such shares, securities or obligations); (C) the cancellation of the BRRD Liability; and (D) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due,
including by suspending payment for a temporary period; and (ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution
Authority.
23.
(a) As used in this Section 23 below, (i) “UK Bail-in Legislation” means Part 1 of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks,
investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings); (ii) “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be
exercised; (iii) “UK Bail-in Party” means any Underwriter subject to UK Bail-in Powers; and (iv) “UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer, or dilute shares issued by a person that is a bank or
investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into
shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
(b)
Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements, or understanding between the Company and any UK Bail-in Party, the Company acknowledges and accepts that a
UK Bail-in Liability arising under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts, and agrees to be bound by: (i) the effect of the exercise of UK Bail-in Powers
by the relevant UK resolution authority, in relation to any UK Bail-in Liability of the relevant UK Bail-in Party to the Company under this Agreement, that (without limitation) may include and result in any of the following, or some combination
thereof: (A) the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; (B) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the UK Bail-in
Party or another person, and the issue to or conferral on the Company of such shares, securities or obligations; (C) the cancellation of the UK Bail-in Liability; or (D) the amendment or alteration of any interest, if applicable, thereon, the
maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and (ii) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the
exercise of UK Bail-in Powers by the relevant UK resolution authority.
24.
Each Underwriter has represented and agreed that: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the
Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
25.
Each Underwriter has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the European Economic
Area. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of EU Directive on Markets in Financial Instruments
(2014/65/EU) (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive (EU) 2016/97 (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1)
of MiFID II.
26.
Each Underwriter has represented and agreed that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the United Kingdom.
For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by
virtue of the EUWA; or (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional
client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA.
27.
In recognition of the U.S. Special Resolutions Regimes, the Company and each of the Underwriters agree that:
(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.
(c)
For the purposes of this Section 27,
(i) “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);
(ii) “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);
(iii) “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
(iv) “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.
28.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
29.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
30.
The Company and each of the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
31.
This Agreement may be executed by any one or more of the parties hereto 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.
32.
Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of
any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax
structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that
treatment.
If the foregoing is in accordance
with your understanding, please sign and return to us four counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company.
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Very truly yours,
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BECTON, DICKINSON AND COMPANY
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By:
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/s/ Christopher Reidy
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Name: Christopher Reidy
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Title: Executive Vice President, Chief Financial Officer and Chief Administrative Officer
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[Signature Page to Underwriting Agreement]
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Accepted as of the date hereof:
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BARCLAYS BANK PLC
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By:
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/s/ Emily Wilson
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Name: Emily Wilson
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Title: Authorized Signatory
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[Signature Page to Underwriting Agreement]
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BNP PARIBAS
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By:
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/s/ Hugh Pryse Daves
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Name: Hugh Pryse Daves
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Title: Authorized Signatory
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By:
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/s/ Benedict Foster
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Name: Benedict Foster
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Title: Authorized Signatory
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[Signature Page to Underwriting
Agreement]
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CITIGROUP GLOBAL MARKETS LIMITED
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By:
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/s/ Annabel Ballance
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Name: Annabel Ballance
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Title: Delegated Signatory
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[Signature Page to Underwriting
Agreement]
GOLDMAN SACHS & CO. LLC
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By:
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/s/ Ashley Everett
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Name: Ashley Everett
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Title:
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[Signature Page to Underwriting
Agreement]
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J.P. MORGAN SECURITIES PLC
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By:
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/s/ Robert Chambers
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Name:
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Robert Chambers
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Title:
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Executive Director
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[Signature Page to Underwriting Agreement]
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Morgan Stanley & Co. International plc
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By:
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/s/ Rachel Holdstock
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Name:
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Rachel Holdstock
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Title:
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Executive Director
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[Signature Page to Underwriting Agreement]
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MUFG Securities (Europe) N.V.
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By:
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/s/ Corina Painter
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Name:
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Corina Painter
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Title:
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Authorised Signatory
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[Signature Page to Underwriting Agreement]
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The Bank of Nova Scotia, London Branch
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By:
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/s/ Richard Enskat
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Name:
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Richard Enskat
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Title:
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Director Legal
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By:
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/s/ Cesare Roselli
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Name:
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Cesare Roselli
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Wells Fargo Securities International Limited
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By:
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/s/ Damon Mahon
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Name:
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Damon Mahon
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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BNY Mellon Capital Markets, LLC
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By:
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/s/ Dan Klinger
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Name:
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Dan Klinger
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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ING Bank N.V., Belgian Branch
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By:
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/s/ Kris Devos
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Name:
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Kris Devos
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Title:
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Global Head of Debt Syndicate
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By:
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/s/ William De Vreede
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Name:
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William De Vreede
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Title:
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Head Legal Capital Markets
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[Signature Page to Underwriting Agreement]
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Intesa Sanpaolo S.p.A.
|
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By:
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/s/ Pantaleo Cucinotta
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Name:
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Pantaleo Cucinotta
|
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|
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Loop Capital Markets
|
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By:
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/s/ Cecil Brown
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Name:
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Cecil Brown
|
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Title:
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Senior Vice President
|
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[Signature Page to Underwriting Agreement]
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PNC Capital Markets LLC
|
|
|
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|
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By:
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/s/ Brian McNelis
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Name:
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Brian McNelis
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|
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Siebert Williams Shank & Co., LLC
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By:
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/s/ David Finkelstein
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Name:
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David Finkelstein
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Standard Chartered Bank
|
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By:
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/s/ Rajan Bagri
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Name:
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Rajan Bagri
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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TD Global Finance unlimited company
|
|
|
|
|
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|
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By:
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/s/ Frances Watson
|
|
|
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Name:
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Frances Watson
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|
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Title:
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Director, Transaction Management Group
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[Signature Page to Underwriting Agreement]
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U.S. Bancorp Investments, Inc.
|
|
|
|
|
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|
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By:
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/s/ William J. Carney
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Name:
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William J. Carney
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
SCHEDULE I
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Underwriter
|
Principal
Amount of 2023
Notes to be
Purchased
|
Principal
Amount
of 2025 Notes to
be Purchased
|
|
|
|
|
|
Barclays Bank PLC
|
€82,000,000
|
€102, 500,000
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BNP Paribas
|
€82,000,000
|
€102,500,000
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|
Citigroup Global Markets Limited
|
€82,000,000
|
€102,500,000
|
|
Goldman Sachs & Co. LLC
|
€17,000,000
|
€21,250,000
|
|
J.P. Morgan Securities plc
|
€17,000,000
|
€21,250,000
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Morgan Stanley & Co. International plc
|
€17,000,000
|
€21,250,000
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MUFG Securities (Europe) N.V.
|
€17,000,000
|
€21,250,000
|
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The Bank of Nova Scotia, London Branch
|
€17,000,000
|
€21,250,000
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|
Wells Fargo Securities International Limited
|
€17,000,000
|
€21,250,000
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|
Loop Capital Markets LLC
|
€10,400,000
|
€13,000,000
|
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BNY Mellon Capital Markets, LLC
|
€5,200,000
|
€6,500,000
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ING Bank N.V., Belgian Branch
|
€5,200,000
|
€6,500,000
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Intesa Sanpaolo S.p.A.
|
€5,200,000
|
€6,500,000
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PNC Capital Markets LLC
|
€5,200,000
|
€6,500,000
|
|
Siebert Williams Shank & Co., LLC
|
€5,200,000
|
€6,500,000
|
|
Standard Chartered Bank
|
€5,200,000
|
€6,500,000
|
|
TD Global Finance unlimited company
|
€5,200,000
|
€6,500,000
|
|
U.S. Bancorp Investments, Inc.
|
€5,200,000
|
€6,500,000
|
|
|
|
|
|
Total
|
€400,000,000
|
€500,000,000
|
SCHEDULE II
|
|
(a)
|
Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
|
|
|
●
|
Electronic Investor Presentation of Becton, Dickinson and Company dated August 2021
|
|
|
(b)
|
Additional Documents Incorporated by Reference: None
|
ANNEX I(a)
CONTENT OF LETTER TO BE PROVIDED BY GARY DEFAZIO, SENIOR VICE PRESIDENT CORPORATE SECRETARY AND ASSOCIATE GENERAL COUNSEL FOR
BECTON, DICKINSON AND COMPANY
ANNEX I(b)
CONTENT OF LETTERS TO BE PROVIDED BY SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, SPECIAL COUNSEL FOR BECTON, DICKINSON AND COMPANY
ANNEX II
DESCRIPTION OF COMFORT LETTER OF ERNST & YOUNG LLP
Exhibit 1.2
Becton Dickinson Euro Finance S.à r.l.
as issuer
Becton, Dickinson and Company
as guarantor
Debt Securities
________
Underwriting Agreement
August 10, 2021
Barclays Bank PLC
BNP Paribas
Citigroup Global Markets Limited
Goldman Sachs & Co. LLC
J.P. Morgan Securities plc
Morgan Stanley & Co. International plc
MUFG Securities (Europe) N.V.
The Bank of Nova Scotia, London Branch
Wells Fargo Securities International Limited
BNY Mellon Capital Markets, LLC
ING Bank N.V., Belgian Branch
Intesa Sanpaolo S.p.A.
Loop Capital Markets LLC
PNC Capital Markets LLC
Siebert Williams Shank & Co., LLC
Standard Chartered Bank
TD Global Finance unlimited company
U.S. Bancorp Investments, Inc.
c/o Barclays Bank PLC
5 The North Colonnade, Canary Wharf
London E14 4BB, United Kingdom
c/o BNP Paribas
16, Boulevard des Italiens
75009 – Paris
France
c/o Citigroup Global Markets Limited
Citigroup Centre, Canada Square, Canary Wharf
London E14 5LB, United Kingdom
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198
United States
c/o J.P. Morgan Securities plc
25 Bank Street, Canary Wharf
London, E14 5JP, United Kingdom
c/o Morgan Stanley & Co. International plc
25 Cabot Square, Canary Wharf
London E14 4QA
United Kingdom
c/o MUFG Securities (Europe) N.V.
World Trade Center, Tower H, 11th Floor
Zuidplein 98, 1077XV Amsterdam
c/o The Bank of Nova Scotia, London Branch
201 Bishopsgate
6th Floor
London EC2M 3NS
United Kingdom
c/o Wells Fargo Securities International Limited
33 King William Street
London EC4R 9AT
United Kingdom
c/o BNY Mellon Capital Markets, LLC
240 Greenwich Street
New York, NY 10286
United States
c/o ING Bank N.V., Belgian Branch
24 Avenue Marnix
1000 Brussel
Belgium
c/o Intesa Sanpaolo S.p.A.
Divisione IMI Corporate & Investment Banking
Via Manzoni, 4
20121 Milan
Italy
c/o Loop Capital Markets LLC
111 West Jackson Boulevard
Ste 1901
Chicago, IL 60604
United States
c/o PNC Capital Markets LLC
300 Fifth Avenue
Pittsburgh, PA 15222 Allegheny
United States
c/o Siebert Williams Shank & Co., LLC
100 Wall Street, 18th Floor
New York, New York 10005
United States
c/o Standard Chartered Bank
1095 Avenue of the Americas, Ste 38
New York, NY 10036
United States
c/o TD Global Finance unlimited company
5th Floor, One Molesworth Street
Dublin 2, D02 RF29
Ireland
c/o U.S. Bancorp Investments, Inc.
60 Livingston Avenue
Ep-mn-wn3c
Saint Paul, MN 55107
United States
Ladies and Gentlemen:
Becton Dickinson Euro Finance S.à r.l., a Luxembourg private limited
liability company (société à responsabilité limitée) having its registered office at L-1471 Luxembourg, 412 F, route d’Esch and registered with the Luxembourg trade and companies register (Registre de commerce et des sociétés,
Luxembourg) under number B234229 (the “Company”) proposes, subject to the terms and conditions stated herein, to issue and sell to the underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of (i) €900,000,000 principal amount of
its 0.334% Notes due 2028 (the “2028 Notes”) and (ii) €900,000,000 principal amount of its 1.336% Notes due 2041 (the “2041 Notes” and, together with the 2028 Notes, the “Securities”). The Securities will be fully and unconditionally guaranteed as to
payment of principal, premium, if any, and interest (the “Guarantees”) by Becton, Dickinson and Company, a New Jersey corporation (the “Guarantor”) and the indirect parent of the Company. The Securities and Guarantees are to be issued pursuant to the
Indenture, dated as of May 17, 2019 (the “Base Indenture”), among the Company, the Guarantor and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as amended and supplemented by the Third Supplemental Indenture thereto, to
be dated as of August 13, 2021 (the “Third Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).
The Securities will be issued in the form of a permanent global security
(the “Global Security”) registered in the name of a nominee of a common safekeeper (the “CSK”) located outside the United States for Clearstream Banking S.A. (“Clearstream”), or Euroclear Bank SA/NV, as operator of the Euroclear System (“Euroclear”).
The Global Security will be issued under the New Safekeeping Structure (“NSS”) and is intended to be held in a manner that would allow eligibility as collateral for Eurosystem intra-day credit and monetary policy operations. In connection with the
issuance of the Securities, the Company will enter into an international central securities depositaries agreement (the “ICSD Agreement”), to be dated August 13, 2021, among the Company, Euroclear and Clearstream.
1. The Company and the Guarantor, jointly and severally,
represent and warrant to, and agree with each of the Underwriters that:
(a)
An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”) on Form S-3 (File Nos. 333-255829 and 333-255829-01) in respect of the Securities has been
filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order
suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been initiated or, to the Guarantor’s and the Company’s knowledge, threatened
by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Guarantor or the Company (the base
prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including
all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(c)
hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
incorporated therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any
annual report of the Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b)
No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed
in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company and the Guarantor by an Underwriter expressly for use therein;
(c)
For the purposes of this Agreement, the “Applicable Time” is 9:20 p.m. (London time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section
5(a) hereof, taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not 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 under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto, if any, does not conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not 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 under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions
made in the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company and the Guarantor by an Underwriter expressly for use therein;
(d)
The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the Company and the Guarantor by an Underwriter expressly for use therein; and no such documents were filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b) hereto;
(e)
The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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 case of the Prospectus, in the light
of the circumstances under which they were made) not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to
the Company and the Guarantor by an Underwriter expressly for use therein;
(f)
Neither the Guarantor nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, which
event is material to the Guarantor and its subsidiaries, taken as a whole; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the capital stock
(other than the issuance of shares under the Guarantor’s employee benefit or stock purchase plans or upon conversion of outstanding convertible preferred stock of the Guarantor) or long term obligations of the Company or the Guarantor and its
subsidiaries which are material taken as a whole or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results
of operations of the Guarantor and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(g)
Each of the Company and the Guarantor has been duly incorporated or formed and is validly existing as a corporation or a company, as the case may be, in good standing (to the extent good standing is applicable in such
jurisdiction) under the laws of its jurisdiction of incorporation or formation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Prospectus, and is duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification; and each subsidiary of the Guarantor
has been duly incorporated or formed and is validly existing as a corporation or company in good standing (to the extent good standing is applicable in such jurisdiction) under the laws of its jurisdiction of incorporation or formation and is duly
qualified as a foreign corporation or company for the transaction of business and in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, except
in those instances with respect to the Guarantor and its subsidiaries where failure to be so qualified or in good standing would not have a material adverse effect on the business or financial condition of the Guarantor and its subsidiaries taken as
a whole;
(h)
The Guarantor has an authorized capitalization as set forth in the Pricing Prospectus and all of the issued shares of capital stock of the Guarantor have been duly and validly authorized and issued and are fully paid
and non-assessable and all of the issued shares of capital stock or ownership interests of each subsidiary of the Guarantor have been duly and validly authorized and issued, are fully paid and, to the extent applicable, non-assessable and (except for
directors’ qualifying shares and minority interests reflected in the Guarantor’s consolidated financial statements included or incorporated in the Prospectus) are owned directly or indirectly by the Guarantor, free and clear of all liens,
encumbrances, equities or claims;
(i)
The Securities have been duly authorized and, when issued and delivered pursuant to this Agreement and duly effectuated by the relevant CSK, will have been duly executed, authenticated, issued, delivered and
effectuated and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, under which they are to be issued, which is substantially in the form filed as an exhibit to the Registration
Statement or such other form as shall have previously been agreed to by you; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Securities, the Guarantees and the
Indenture will conform to the descriptions thereof in the Pricing Disclosure Package and the Prospectus; the Guarantees have been duly authorized by the Guarantor and when the Securities are issued and delivered pursuant to this Agreement and duly
effectuated by the relevant CSK, the Guarantees will have been duly executed, issued and delivered and will constitute the valid and legally binding obligations of the Guarantor, enforceable in accordance with its terms, subject as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(j)
The issue and sale of the Securities, the issue of the Guarantees and the compliance by the Company and the Guarantor with all of the provisions of the Securities, the Guarantees, the Indenture and this Agreement, as
applicable, and the consummation of the transactions herein and therein contemplated and the entry into the ICSD Agreement by the Company will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Guarantor or any of its subsidiaries is a party or by which the Guarantor or any of its subsidiaries is bound or to which any of the
property or assets of the Guarantor or any of its subsidiaries is subject, result in any violation of the provisions of the articles of association of the Company or the Certificate of Incorporation, as amended, or Bylaws of the Guarantor or result
in any violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Guarantor or any of its subsidiaries or any of their respective properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities, the issue of the Guarantees or the consummation by the Company and the Guarantor of the
transactions contemplated by this Agreement or the Indenture or entry into the ICSD Agreement by the Company, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(k)
The statements set forth in the Pricing Prospectus and the Prospectus under the caption “Description of Notes” insofar as they purport to constitute a summary of the terms of the Securities, the Guarantees and the
Indenture, and under the caption “Underwriting”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair;
(l)
Other than as set forth in the Pricing Prospectus, there are no legal or governmental proceedings pending to which the Guarantor or any of its subsidiaries is a party or of which any property of the Guarantor or any of
its subsidiaries is the subject which would individually or in the aggregate reasonably be expected to have a material adverse effect on the consolidated financial position, stockholders’ equity or results of operations of the Guarantor and its
subsidiaries taken as a whole; and, to the best of the Guarantor’s and the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; and there is no legal or governmental proceeding
to which the Guarantor or any of its subsidiaries is a party or of which any property of the Guarantor or any of its subsidiaries is the subject that would be required to be disclosed in the Registration Statement, the Pricing Prospectus or the
Prospectus and is not so disclosed;
(m)
Neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Securities, the issuance of the Guarantees and the application of the proceeds thereof, will be an “investment company”,
as such term is defined in the Investment Company Act of 1940, as amended;
(n)
(i) (A) At the time of filing the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule
163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, each of the Guarantor, and, with respect to clause (C) only, the Company, was a “well-known seasoned issuer” as defined in Rule
405 under the Act; and (ii) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, neither
the Company nor the Guarantor was an “ineligible issuer” as defined in Rule 405 under the Act;
(o)
Ernst & Young LLP, who have audited certain financial statements of the Guarantor and its subsidiaries and have audited the Guarantor’s internal control over financial reporting, are an independent registered
public accounting firm in respect of the Guarantor as required by the Act and the rules and regulations of the Commission thereunder;
(p)
The financial statements and the related notes thereto included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the rules and regulations thereunder, as applicable, and present fairly in all material respects the financial position of the Guarantor 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 generally accepted accounting principles applied on a consistent basis throughout the
periods covered thereby, and the supporting schedules included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, when read in conjunction with the related financial statements,
present fairly in all material respects the information required to be stated therein; and the other financial information included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus
has been derived from the accounting records of the Guarantor and its subsidiaries and presents fairly in all material respects, on the basis stated therein, the information shown thereby. The interactive data in eXtensbile Business Reporting
Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s
rules and guidelines applicable thereto;
(q)
The Guarantor maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been
designed by the Guarantor’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles. The Guarantor believes its internal control over financial reporting is effective and the Guarantor is not aware of any material weaknesses in its internal control over
financial reporting;
(r)
Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus and except as set forth in the Pricing Prospectus, there has been no change in the Guarantor’s
internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Guarantor’s internal control over financial reporting;
(s)
Neither the Company nor the Guarantor has taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in stabilization or manipulation of the
price of any securities of the Company or the Guarantor in connection with the offering of the Securities;
(t)
The Guarantor maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information relating to the Guarantor and its subsidiaries is made known to the Guarantor’s principal executive officer and principal financial officer by others within those entities; and such
disclosure controls and procedures are effective;
(u)
(i) Neither the Guarantor nor any of its subsidiaries or affiliates, nor, to the Guarantor’s and the Company’s knowledge, any director, manager, officer, employee, agent or representative of the Guarantor or of any of
its subsidiaries or affiliates, has taken or will take any action on behalf of the Guarantor or the Company in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or
anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or 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) to influence official action or secure an improper advantage in favor of the Guarantor or the Company; and (ii) the
Guarantor and its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve
compliance with such laws and with the representation and warranty contained herein; and (iii) no part of the proceeds of the offering is intended to be used, directly or indirectly, in violation of any applicable anti-corruption law except in case
of (i) – (iii), as would not be expected to have a material adverse effect on the Guarantor and its subsidiaries taken as a whole or on the transactions contemplated herein;
(v)
To the Guarantor’s and the Company’s knowledge, the operations of the Guarantor and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the
applicable anti-money laundering statutes of jurisdictions where each of the Guarantor and its subsidiaries conduct business, 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 Guarantor or any of its
subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Guarantor and the Company, threatened;
(w)
(i) The Guarantor and the Company represent that neither the Guarantor nor any of its subsidiaries (collectively, the “Entity”) or, to the knowledge of the Entity, any director, manager or officer of the Entity, is an
individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, or any similar sanctions imposed by any other authority to which the Entity is currently
subject (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria and Crimea);
(ii) The Entity represents and covenants that, except pursuant to appropriate
government authorization or as exempted from such regulation, it will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise); and
(iii) The Entity represents and covenants that, except pursuant to appropriate
government authorization or as exempted from such regulation, for the past three (3) years, it has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was the subject of Sanctions;
(iv) The representation in this clause (w) is provided to (i) each Underwriter
domiciled in the European Union only if and to the extent that it does not result in a violation of the Council Regulation (EC) No. 2271/96 of 22 November 1996 (the “Blocking Regulation”) or any laws or regulations implementing the Blocking
Regulation in any member state of the European Union and (ii) each Underwriter domiciled in the United Kingdom if and to the extent that it does not result in a violation of the Blocking Regulation as it forms part of domestic law by virtue of the
European Union (Withdrawal) Act 2018 (“EUWA”) or any similar locking or anti-boycott law in the United Kingdom;
(x)
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) (x) to the Guarantor’s and the Company’s knowledge after due inquiry, there has been no security breach or other
compromise of or relating to the Guarantor’s or any of 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 maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) none of the Guarantor or its subsidiaries have been notified of, or have any knowledge of any event that would reasonably be
expected to result in, any security breach or other compromise to their IT Systems and Data; (ii) the Guarantor and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations 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 clauses (i) and (ii), individually or in the aggregate, have a material adverse effect on the Guarantor and its subsidiaries taken as a whole; and (iii) the Guarantor and
its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices;
(y)
There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid by or on behalf of the Underwriters in Luxembourg or any political subdivision or taxing authority
thereof in connection with the execution and delivery of this Agreement, the Securities and the Indenture or the offer or sale of the Securities and the issue of the Guarantees, except in the case of voluntary registration of such documents in
Luxembourg and/or the registration of such documents in Luxembourg, which will be required where such documents are physically attached (annexé(s)) to a public deed or to any other document subject to mandatory registration, in which case
either a nominal registration duty or an ad valorem duty will be payable depending on the nature of the document to be registered;
(z)
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, all payments to be made by the Company or the Guarantor under this Agreement shall be paid free and clear of and
without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature, imposed by the United States of America or the Grand Duchy of Luxembourg, or by any
department, agency or other political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities with respect thereto (collectively, “Taxes”); if any Taxes are required by law to be deducted or withheld in
connection with such payments, the Company will increase the amount paid so that the full amount of such payment is received by the Underwriters.
2. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of (i) 99.60% of the principal amount of the 2028 Notes and (ii)
99.35% of the principal amount of the 2041 Notes, plus accrued interest, if any, from August 13, 2021 to the Time of Delivery (as defined below) hereunder, the respective principal amounts of Securities set forth opposite the name of such Underwriter
in Schedule I hereto.
3. Upon the authorization by Barclays Bank PLC, BNP
Paribas and Citigroup Global Markets Limited (the “Representatives”) of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each
Underwriter hereunder will be represented by the Global Security in book-entry form which will be registered in the name of the CSK located outside the United States for Euroclear and Clearstream. Payment for the Securities shall be made by or on
behalf of the Underwriters to the Company in immediately available funds in euro by wire transfer through a common service provider (the “Common Service Provider”) appointed by Euroclear and Clearstream to the account specified by the Company to the
Underwriters at least forty-eight hours in advance against delivery of the Global Security representing all of the Securities to the Common Service Provider for the respective accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the Securities to the Underwriters duly paid by the Company. The Company will cause the certificate representing the Securities and the Guarantees to be made available to the Representatives for checking at least
twenty-four hours prior to the Time of Delivery (as defined below) at the office of the Common Service Provider or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be at or about 10:00 a.m.,
London time, on August 13, 2021 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters pursuant to Section 8(j) hereof, will be delivered at the offices of Sullivan &
Cromwell LLP, 125 Broad Street, New York, New York 10004, and the Securities and the Guarantees will be delivered at the Designated Office, all at the Time of Delivery. Final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto on the Business Day next preceding the Time of Delivery. For the purposes of this Section 4, “Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City or London, England are generally authorized or obligated by law or executive order to close.
5. Each of the Company and the Guarantor, jointly and
severally, agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the date of this Agreement; to make no further amendment or any supplement to the Registration
Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, relating to the Securities, in a form approved by
you and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file
promptly all reports and any definitive proxy or information statements required to be filed by the Company or the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose or pursuant to Section 8A of the Act, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the
event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and
sales of the Securities by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form
of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus
which shall be disapproved by you promptly after reasonable notice thereof;
(c) If by the third anniversary (the “Renewal Deadline”) of the
initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company and the Guarantor will file, if they have not already done so and are each eligible to do so, a new automatic shelf
registration statement relating to the Securities and the Guarantees, in a form satisfactory to you. If at the Renewal Deadline the Company and the Guarantor are no longer eligible to file an automatic shelf registration statement, the Company and
the Guarantor will, if they have not already done so, file a new shelf registration statement relating to the Securities and the Guarantees, in a form satisfactory to you and will use their respective best efforts to cause such registration statement
to be declared effective within 180 days after the Renewal Deadline. The Company and the Guarantor will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired
registration statement relating to the Securities and the Guarantees. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be;
(d) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities and the Guarantees for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the distribution of the Securities and the Guarantees, provided that in connection therewith neither the Company nor the Guarantor shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(e) To furnish the Underwriters with written and electronic copies
of the Prospectus in such quantities as you may from time to time reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of
which the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made when such Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, or to file under the Exchange Act any
document incorporated by reference in the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus, or prior to availability of the
Prospectus, the Pricing Prospectus, or a supplement to the Prospectus, or prior to availability of the Prospectus, the Pricing Prospectus, which will correct such statement or omission or effect such compliance; and in case any Underwriter is
required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon your request
but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(f) To make generally available to their securityholders as soon
as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Guarantor and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Guarantor, Rule 158 under the Act);
(g) During the period beginning from the date hereof and
continuing to and including the later of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose, except as
provided hereunder, of any debt securities of the Company or the Guarantor which mature more than one year after such Time of Delivery and which are substantially similar to the Securities;
(h) To pay the required Commission filing fees relating to the
Securities and the Guarantees within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act;
(i) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”; and
(j) To cooperate with the Underwriters in arranging for the
Securities to be eligible for clearance and settlement through Euroclear and Clearstream.
6. (a) (i) Each of the Company and the Guarantor,
jointly and severally, represents and agrees that, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not made and will not make any offer relating to the
Securities or the Guarantees that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(ii)
each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, other than one or more term sheets relating to the Securities and the Guarantees containing customary
information and conveyed to purchasers of Securities or any free writing prospectus that would not be required to be filed with the Commission (including customary Bloomberg communications containing preliminary or final terms of the securities), it
has not made and will not make any offer relating to the Securities and the Guarantees that would constitute a free writing prospectus; and
(iii)
any such free writing prospectus the use of which has been consented to by the Company and the Representatives (other than the final term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule
II(a) hereto;
(b) The Company and the Guarantor have complied and will comply
with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) The Company and the Guarantor agree that if at any time
following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus
or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company and the Guarantor will give
prompt notice thereof to the Representatives, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company and
the Guarantor by an Underwriter expressly for use therein.
7. Each of the Company and the Guarantor, jointly and
severally, covenants and agrees with the several Underwriters that the Company and the Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s and the Guarantor’s counsel and accountants in
connection with the registration of the Securities and the Guarantees under the Act and all other expenses in connection with the preparation, printing, and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any
Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, the Indenture, any blue
sky memorandum and any other documents in connection with the offering, purchase, sale and delivery of the Securities and the Guarantees; (iii) all expenses in connection with the qualification of the Securities and the Guarantees for offering and
sale under state securities laws as provided in Section 5(d) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with any blue sky survey; (iv) any fees
charged by securities rating services for rating the Securities; (v) the cost of preparing the Securities and the Guarantees; (vi) the fees and expenses of the Trustee and any paying agent, registrar or depository and any agent of the Trustee or such
paying agent and the fees and disbursements of counsel for the Trustee and such paying agent in connection with the Indenture, the Securities and the Guarantees; (vii) the costs of admitting the Securities to the Official List of Euronext Dublin and
to trading on the Global Exchange Market thereof and any expenses incidental thereto, including those of the Irish listing agent; (viii) all expenses and application fees in connection with the approval of the Securities for eligibility for clearance
and settlement through Euroclear and Clearstream; and (ix) all other costs and expenses incident to the Company’s and the Guarantor’s performance of their obligations hereunder which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9 and 16 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, all expenses incurred by the Underwriters in connection
with any “road show”, transfer taxes on resale of any of the Securities by the Underwriters, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder shall be
subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Guarantor herein are, at and as of the Time of Delivery, true and correct, the condition that the Company and the
Guarantor shall have each performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and
any other material required to be filed by the Company or the Guarantor pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order
suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act shall have been initiated or threatened by the Commission and no
notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus
or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell LLP, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to you, with respect to the incorporation of the Guarantor, the validity of the Indenture, the Securities, the Guarantees, the
Registration Statement, the Prospectus and other related matters as you may reasonably request, and the Company and the Guarantor shall have furnished to such counsel such papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) (i) The Assistant General Counsel for the Guarantor; (ii)
Skadden, Arps, Slate, Meagher & Flom LLP, acting as special United States counsel for the Company and the Guarantor; and (iii) Loyens & Loeff Luxembourg S.à r.l., acting as special Luxembourg counsel for the Company shall have furnished to
you their respective written opinions (the content of which is set forth in Annex I(a), Annex I(b) and Annex I(c) hereto, respectively), dated the Time of Delivery, in form and substance reasonably satisfactory to you;
(d) (i) At the time of the execution of this Agreement,
Ernst & Young LLP, as auditors of the Company, shall have furnished to you a letter, dated such date, in form and substance satisfactory to you, to the effect set forth in Annex II hereto; and (ii) at the Time of Delivery, Ernst & Young LLP
shall have furnished to the Underwriters a letter, dated such Time of Delivery, in form and substance satisfactory to the Underwriters, to the effect that they reaffirm the statements made in the relevant letter furnished pursuant to Section 8(d)(i)
above, except that the specified date referred to shall be a date not more than three business days prior to the Time of Delivery;
(e) (i) Neither the Guarantor nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing
Prospectus there shall not have been any change in the capital stock (other than the issuance of shares under the Guarantor’s employee benefit or stock purchase plans or upon conversion of outstanding convertible preferred stock of the Guarantor) or
long term debt of the Guarantor or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the
Guarantor and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(f) On or after the Applicable Time (i) no downgrading shall have
occurred in the rating accorded the Company’s or the Guarantor’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or the Guarantor’s debt securities;
(g) On or after the Applicable Time there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE; (ii) a suspension or material limitation in trading in the Company’s or the Guarantor’s securities on the NYSE; (iii) a general moratorium
on commercial banking activities declared by Federal, New York State or European Union authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States or the European Union; or (iv) the
outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or the member states of the European Union or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated by the Prospectus;
(h) The Securities shall be eligible for clearance and settlement
through Euroclear and Clearstream;
(i) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery (i) an executed copy of the ICSD Agreement substantially in the form attached hereto as Annex III and (ii) a duly executed copy of the effectuation authorization substantially in the form attached hereto as Annex IV;
(j) The Securities shall be duly listed on the Official List of
Euronext Dublin and admitted for trading on the Global Exchange Market thereof, subject to official notice of issuance; and
(k) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery certificates of officers of the Company and the Guarantor reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and the Guarantor herein at and as of such time, as to the
performance by the Company and the Guarantor of all of their respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as you may
reasonably request.
(l) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery a certificate from the chief financial officer of the Guarantor reasonably satisfactory to you as to the absence of instruments or agreements which limit or restrict the freedom of the Guarantor or the Company to guarantee
or incur the indebtedness evidenced by the Notes.
If any of the conditions specified in this Section 8 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel to the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 8 shall be
delivered at the office of Sullivan & Cromwell LLP, counsel for the Underwriters, at 125 Broad Street, New York, New York 10004, at the Time of Delivery.
9. (a) The Company and the Guarantor, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and the Guarantor shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by any Underwriter expressly for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company and the Guarantor against any losses, claims, damages or liabilities to which the Company or the Guarantor may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by such Underwriter
expressly for use therein; and will reimburse the Company or the Guarantor for any legal or other expenses reasonably incurred by the Company or the Guarantor in connection with investigating or defending any such action or claim as such expenses are
incurred. Each of the Company and the Guarantor acknowledges that the following statements under the caption “Underwriting” in the Prospectus (i) the sixth sentence of the sixth paragraph of text, concerning market making by the Underwriters,
(ii) the third paragraph of text, concerning the terms of the offering by the Underwriters and (iii) the eighth, ninth and tenth paragraphs of text, concerning stabilization, short-positions and penalty bids created by the Underwriters, constitute
the only information furnished in writing to the Company and the Guarantor by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Pricing Disclosure Package and the Prospectus.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party) provided that in the event of such assumption the
action may not be compromised or settled by the indemnifying party without the consent of the indemnified party, which consent shall not be unreasonably withheld. After notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation. The indemnifying party shall not be liable to the indemnified party pursuant to the provisions of this Section 9 in respect of any action compromised or settled by the
indemnified party, unless the written consent of the indemnifying party shall have been obtained to such compromise or settlement (which consent shall not be unreasonably withheld).
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Guarantor bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether any 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
the Guarantor on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantor and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and
not joint.
(e) The obligations of the Company and the Guarantor under this
Section 9 shall be in addition to any liability which the Company or the Guarantor may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act and each
broker-dealer affiliate of any Underwriter, and the directors, officers and selling agents of each Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company or the Guarantor, as the case may be, and to each person, if any, who controls the Company or the Guarantor, as the case may be, within
the meaning of the Act.
10. (a) If at the Time of Delivery, any Underwriter shall default
in its obligation to purchase the Securities which it has agreed to purchase hereunder, the Representatives may in their discretion arrange for any of the Representatives or another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that they have so arranged for
the purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for a period of not
more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company and the Guarantor agree to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this
Section 10 with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Securities which 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 which such Underwriter agreed to purchase hereunder and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Securities which 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 subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate if so decided by the Company upon notice to the Underwriters pursuant to Section 18 hereunder, without liability on the part of any non-defaulting Underwriter or the Company or the Guarantor, except for the expenses to be
borne by the Company, the Guarantor and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
kk 11. The Company
and the Guarantor hereby authorize Barclays Bank PLC in its role as stabilizing manager (the “Stabilizing Manager”) to make adequate public disclosure regarding stabilization of the information required in relation to such stabilization by Commission
Delegated Regulation (EU) 2016/1052 of 8 March 2016 (the “Delegated Regulation”) and/or the Delegated Regulation as it forms part of domestic law by virtue of the EUWA, as applicable. The Stabilizing Manager for its own account may, to the extent
permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as
principal and not as agent of the Company and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, there is no assurance that the
Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Company to issue in excess of the aggregate principal
amount of Securities specified in Schedule I hereto. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and directives.
12. Solely for the purposes of the requirements of Article 9(8) of the MIFID Product Governance rules under EU Delegated
Directive 2017/593 (the “Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the Product Governance Rules: (a) Citigroup Global Markets Limited (the “MIFID Manufacturer”) acknowledges that it understands the
responsibilities conferred upon it under the Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set out in any
Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in connection with the Securities; and (b) each of the other Underwriters, the Company and the Guarantor note the application of the Product Governance Rules and
acknowledge the target market and distribution channels identified as applying to the Securities by the MIFID Manufacturers and the related information set out in any Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in
connection with the Securities.
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13.
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Solely for the purposes of the requirements of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK MiFIR Product Governance Rules”),
regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance Rules:
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(a) Each of Barclays Bank PLC, BNP Paribas, Citigroup Global
Markets Limited, Morgan Stanley & Co. International plc and J.P. Morgan Securities plc (each a “UK MiFIR Manufacturer” and together, the “UK MiFIR Manufacturers”) acknowledges to each other UK MiFIR Manufacturer that it understands the
responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related information set
out in any Preliminary Prospectus and the Prospectus, or any such amendment or supplement, in connection with the Securities; and
(b) Each of the other Underwriters, the Company and the Guarantor
note the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution channels identified as applying to the Securities by the UK MiFIR Manufacturers and the related information set out in any Preliminary
Prospectus and the Prospectus, or any such amendment or supplement, in connection with the Securities.
14. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company and the Guarantor with
respect to any sum due from it to any Underwriter or any person controlling any Underwriter or any broker-dealer affiliate of any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until
the first business day following receipt by such Underwriter or controlling person or broker-dealer affiliate of such Underwriter of any sum in such other currency, and only to the extent that such Underwriter or controlling person or broker-dealer
affiliate of such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling
person or broker-dealer affiliate of such Underwriter hereunder, the Company and the Guarantor jointly and severally agree, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person or
broker-dealer affiliate of such Underwriter against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person or broker-dealer affiliate of such Underwriter hereunder, such
Underwriter or controlling person or broker-dealer affiliate of such Underwriter agrees to pay to the Guarantor an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person or
broker-dealer affiliate of such Underwriter hereunder.
15. The respective indemnities, agreements,
representations, warranties and other statements of the Company, the Guarantor and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or the Guarantor, or any officer or director or controlling
person of the Company or the Guarantor, and shall survive delivery of and payment for the Securities.
16. If this Agreement shall be terminated pursuant to
Section 10 hereof, neither the Company nor the Guarantor shall then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, the Securities are not delivered by or on behalf of the Company
as provided herein, the Company and the Guarantor will reimburse the Underwriters for all out of pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of the Securities, but neither the Company nor the Guarantor shall then be under further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
17. The execution of this Agreement by all parties will
constitute the Underwriters’ acceptance of the ICMA Agreement Among Managers Version 1/New York Schedule subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this Agreement. References to the
“Managers” shall be deemed to refer to the Underwriters, references to the “Lead Manager” shall be deemed to refer to each of the Representatives and references to “Settlement Lead Manager” shall be deemed to refer to Barclays Bank PLC. As applicable
to the Underwriters, Clause 3 of the ICMA Agreement Among Managers Version 1/New York Schedule shall be deemed to be deleted in its entirety and replaced with Section 10 of this Agreement.
18. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you in care of Barclays Bank PLC, 5 The North Colonnade, Canary Wharf, London E14 4BB, United Kingdom, Attention: Debt
Syndicate (tel: +44-207-773 9098, email: LeadManagedBondNotices@barclayscorp.com); BNP Paribas, 10 Harewood Avenue, London NW1 6AA, United Kingdom, Attention: Fixed Income Syndicate; Citigroup Global Markets Limited, Citigroup Centre, Canada Square,
Canary Wharf, London E14 5LB, United Kingdom, Attention: Syndicate Desk; and if to the Company or the Guarantor shall be delivered or sent by mail, telex or facsimile transmission to the address of the Guarantor set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its
Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company and the Guarantor by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
In accordance with the requirements of the USA PATRIOT Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Guarantor, which information may include the name and
address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
19. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company, the Guarantor and, to the extent provided in Sections 9 and 15 hereof, the officers and directors of the Company and the Guarantor and each person who controls the Company or the Guarantor or any
Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
20. Time shall be of the essence of this Agreement. As
used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
21. Each of the Company and the Guarantor acknowledges and
agrees that (i) the purchase and sale of the Securities and the issuance of the Guarantees pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the several Underwriters, on
the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the Guarantor, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the
Guarantor on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) each of the Company and the Guarantor has consulted its own legal and financial advisors to the extent it deemed
appropriate. Each of the Company and the Guarantor agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or the Guarantor, in
connection with such transaction or the process leading thereto.
22. (a) As used in this Section 22 below, (i) “Bail-in
Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation
Schedule from time to time; (ii) “Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation; (iii) “BRRD” means Directive 2014/59/EU establishing a
framework for the recovery and resolution of credit institutions and investment firms, as amended or superseded; (iv) “BRRD Liability” with respect to any BRRD Party has the same meaning as in such laws, regulations, rules or requirements
implementing the BRRD under the Bail-in Legislation applicable to such BRRD Party; (v) “BRRD Party” means an institution or entity referred to in point (b), (c) or (d) of Article 1(1) BRRD; (vi) “EU Bail-in Legislation Schedule” means the documents
described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/; and (vii) “Relevant Resolution Authority” means the resolution authority with the ability
to exercise any Bail-in Powers in relation to a BRRD Party.
(b) Notwithstanding and to the exclusion of any other term of this
Agreement or any other agreements, arrangements, or understanding between any BRRD Party and the Company and the Guarantor, each of the Company and the Guarantor acknowledges and accepts that a BRRD Liability arising under this Agreement may be
subject to the exercise of Bail-in Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by: (i) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD
Liability of any BRRD Party to the Company or the Guarantor under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof, (A) the reduction of all, or a portion, of the BRRD Liability or
outstanding amounts due thereon; (B) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the relevant BRRD Party or another person (and the issue to or conferral on the Company of such
shares, securities or obligations); (C) the cancellation of the BRRD Liability; and (D) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for
a temporary period; and (ii) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
23. (a) As used in this Section 23 below, (i) “UK Bail-in
Legislation” means Part 1 of the UK Banking Act 2009 and any other law or regulation applicable in the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than
through liquidation, administration or other insolvency proceedings); (ii) “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised; (iii) “UK Bail-in Party” means any Underwriter subject to UK Bail-in
Powers; and (iv) “UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer, or dilute shares issued by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or
change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any
such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability.
(b) Notwithstanding and to the exclusion of any other term of this
Agreement or any other agreements, arrangements, or understanding between the Company and the Guarantor and any UK Bail-in Party, each of the Company and the Guarantor acknowledges and accepts that a UK Bail-in Liability arising under this Agreement
may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledge, accept, and agree to be bound by: (i) the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority, in relation
to any UK Bail-in Liability of the relevant UK Bail-in Party to the Company and the Guarantor under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: (A) the reduction of all, or a
portion, of the UK Bail-in Liability or outstanding amounts due thereon; (B) the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the UK Bail-in Party or another person, and the issue
to or conferral on the Company and the Guarantor of such shares, securities or obligations; (C) the cancellation of the UK Bail-in Liability; or (D) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on
which any payments are due, including by suspending payment for a temporary period; and (ii) the variation of the terms of this Agreement, as deemed necessary by the relevant UK resolution authority, to give effect to the exercise of UK Bail-in
Powers by the relevant UK resolution authority.
24. Each Underwriter has represented and agreed that: (i)
it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000
(the “FSMA”) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (ii) it has complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
25. Each Underwriter has represented and agreed that it
has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the European Economic Area. For the purposes of this provision, the expression “retail investor” means a
person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of EU Directive on Markets in Financial Instruments (2014/65/EU) (as amended, “MiFID II”); or (ii) a customer within the meaning of Directive
(EU) 2016/97 (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II.
26. Each Underwriter has represented and agreed that it
has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person
who is one (or more) of the following: (i) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the EUWA; or (ii) a customer within the meaning of the provisions of the
FSMA and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it
forms part of domestic law by virtue of the EUWA.
27. In recognition of the U.S. Special Resolutions
Regimes, the Company, the Guarantor and each of the Underwriters agree that:
(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.
(c) For the purposes of this Section 27,
(i) “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);
(ii) “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);
(iii) “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
(iv) “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.
28. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company or the Guarantor and the Underwriters, or any of them, with respect to the subject matter hereof.
29. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
30. Each of the Company and the Guarantor irrevocably
submits to the non-exclusive jurisdiction of any New York State or U.S. Federal court sitting in the Borough of Manhattan in the City of New York over any suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated thereby. Each of the Company and the Guarantor irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity under New York or Luxembourg Law (on the grounds
of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit,
action or proceeding.
31. The Company hereby appoints the corporate secretary of
the Guarantor as its agent for service of process in any suit, action or proceeding described in the first sentence of Section 30 and agrees that service of process in any such suit, action or proceeding may be made upon it at the office of such
agent. The Company waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect to such action or proceeding. The Guarantor represents and warrants that it has agreed to act as its
agent for service of process. To the extent that the Company determines to appoint a new agent for service of process, the Company agrees to promptly notify the Representatives of the name and address of such new agent for service of process.
32. The Company, the Guarantor and each of the
Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
33. This Agreement may be executed by any one or more of
the parties hereto 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.
34. Notwithstanding anything herein to the contrary, the
Company and the Guarantor are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company or the Guarantor relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the
foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by you this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters, the Company and the Guarantor.
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Very truly yours,
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BECTON DICKINSON EURO FINANCE S.À R.L.
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By:
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/s/ Alessandro Luino
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Name: Alessandro Luino
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Title: Class A Manager
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BECTON, DICKINSON AND COMPANY
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By:
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/s/ Greg Rodetis
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Name: Greg Rodetis
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Title: Senior Vice President and Treasurer
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[Signature Page to Underwriting
Agreement]
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Accepted as of the date hereof:
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BARCLAYS BANK PLC
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By:
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/s/ Emily Wilson
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Name:
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Emily Wilson
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Title:
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Authorised Signatory
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[Signature Page to Underwriting Agreement]
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BNP Paribas
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By:
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/s/ Hugh Pryse Daves
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Name:
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Hugh Pryse Daves
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Title:
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Authorised Signatory
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By:
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/s/ Benedict Foster
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Name:
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Benedict Foster
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Title:
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Authorised Signatory
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[Signature Page to Underwriting Agreement]
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CITIGROUP GLOBAL MARKETS LIMITED
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By:
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/s/ Annabel Ballance
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Name:
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Annabel Ballance
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Title:
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Delegated Signatory
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[Signature Page to Underwriting Agreement]
GOLDMAN SACHS & CO. LLC
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By:
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/s/ Ashley Everett
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Name:
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Ashley Everett
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Title:
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[Signature Page to Underwriting
Agreement]
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J.P. MORGAN SECURITIES PLC
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By:
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/s/ Robert Chambers
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Name:
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Robert Chambers
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Title:
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Executive Director
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[Signature Page to Underwriting Agreement]
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Morgan Stanley & Co. International plc
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By:
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/s/ Rachel Holdstock
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Name:
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Rachel Holdstock
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Title:
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Executive Director
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[Signature Page to Underwriting Agreement]
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MUFG Securities (Europe) N.V.
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By:
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/s/ Corina Painter
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Name:
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Corina Painter
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Title:
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Authorised Signatory
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[Signature Page to Underwriting Agreement]
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The Bank of Nova Scotia, London Branch
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By:
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/s/ Richard Enskat
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Name:
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Richard Enskat
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Title:
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Director Legal
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By:
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/s/ Cesare Roselli
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Name:
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Cesare Roselli
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Wells Fargo Securities International Limited
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By:
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/s/ Damon Mahon
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Name:
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Damon Mahon
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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BNY Mellon Capital Markets, LLC
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By:
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/s/ Dan Klinger
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Name:
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Dan Klinger
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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ING Bank N.V., Belgian Branch
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By:
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/s/ Kris Devos
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Name:
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Kris Devos
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Title:
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Global Head of Debt Syndicate
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By:
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/s/ William De Vreede
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Name:
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William De Vreede
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Title:
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Head Legal Capital Markets
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[Signature Page to Underwriting Agreement]
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Intesa Sanpaolo S.p.A.
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By:
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/s/ Pantaleo Cucinotta
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Name:
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Pantaleo Cucinotta
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Loop Capital Markets
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By:
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/s/ Cecil Brown
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Name:
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Cecil Brown
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Title:
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Senior Vice President
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[Signature Page to Underwriting Agreement]
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PNC Capital Markets LLC
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By:
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/s/ Brian McNelis
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Name:
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Brian McNelis
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Siebert Williams Shank & Co., LLC
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By:
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/s/ David Finkelstein
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Name:
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David Finkelstein
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Title:
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Managing Director
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[Signature Page to Underwriting Agreement]
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Standard Chartered Bank
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By:
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/s/ Rajan Bagri
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|
|
Name:
|
Rajan Bagri
|
|
|
|
Title:
|
Managing Director
|
|
[Signature Page to Underwriting Agreement]
|
TD Global Finance unlimited company
|
|
|
|
|
|
|
|
By:
|
/s/ Frances Watson
|
|
|
|
Name:
|
Frances Watson
|
|
|
|
Title:
|
Director, Transaction Management Group
|
|
[Signature Page to Underwriting Agreement]
|
U.S. Bancorp Investments, Inc.
|
|
|
|
|
|
|
|
By:
|
/s/ William J. Carney
|
|
|
|
Name:
|
William J. Carney
|
|
|
|
Title:
|
Managing Director
|
|
[Signature Page to Underwriting Agreement]
SCHEDULE I
|
Underwriter
|
Principal Amount of 2028 Notes to be Purchased
|
|
Principal Amount of 2041 Notes to be Purchased
|
|
|
|
|
|
|
Barclays Bank PLC
|
€184,500,000
|
|
€184,500,000
|
|
BNP Paribas
|
€184,500,000
|
|
€184,500,000
|
|
Citigroup Global Markets Limited
|
€184,500,000
|
|
€184,500,000
|
|
Goldman Sachs & Co. LLC
|
€38,250,000
|
|
€38,250,000
|
|
J.P. Morgan Securities plc
|
€38,250,000
|
|
€38,250,000
|
|
Morgan Stanley & Co. International plc
|
€38,250,000
|
|
€38,250,000
|
|
MUFG Securities (Europe) N.V.
|
€38,250,000
|
|
€38,250,000
|
|
The Bank of Nova Scotia, London Branch
|
€38,250,000
|
|
€38,250,000
|
|
Wells Fargo Securities International Limited
|
€38,250,000
|
|
€38,250,000
|
|
Loop Capital Markets LLC
|
€23,400,000
|
|
€23,400,000
|
|
BNY Mellon Capital Markets, LLC
|
€11,700,000
|
|
€11,700,000
|
|
ING Bank N.V., Belgian Branch
|
€11,700,000
|
|
€11,700,000
|
|
Intesa Sanpaolo S.p.A.
|
€11,700,000
|
|
€11,700,000
|
|
PNC Capital Markets LLC
|
€11,700,000
|
|
€11,700,000
|
|
Siebert Williams Shank & Co., LLC
|
€11,700,000
|
|
€11,700,000
|
|
Standard Chartered Bank
|
€11,700,000
|
|
€11,700,000
|
|
TD Global Finance unlimited company
|
€11,700,000
|
|
€11,700,000
|
|
U.S. Bancorp Investments, Inc.
|
€11,700,000
|
|
€11,700,000
|
|
Total
|
€900,000,000
|
|
€900,000,000
|
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the
Pricing Disclosure Package:
|
|
●
|
Electronic Investor Presentation of Becton, Dickinson and Company dated August 2021
|
|
|
(b)
|
Additional Documents Incorporated by Reference: None
|
ANNEX I(a)
CONTENT OF LETTER TO BE PROVIDED BY GARY DEFAZIO, SENIOR VICE PRESIDENT CORPORATE SECRETARY AND ASSOCIATE GENERAL COUNSEL FOR
BECTON, DICKINSON AND COMPANY
ANNEX I(b)
CONTENT OF LETTERS TO BE PROVIDED BY SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, SPECIAL UNITED STATES COUNSEL FOR BECTON, DICKINSON AND
COMPANY AND BECTON DICKINSON EURO FINANCE S.À R.L.
ANNEX I(C)
CONTENT OF LETTERS TO BE PROVIDED BY LOYENS & LOEFF LUXEMBOURG S.À R.L., SPECIAL COUNSEL FOR BECTON DICKINSON EURO FINANCE S.À R.L.
ANNEX II
DESCRIPTION OF COMFORT LETTER OF ERNST & YOUNG LLP
ANNEX III
ICSD AGREEMENT
(see attached)
ANNEX IV
EFFECTUATION AUTHORIZATION
Exhibit 4.1
BECTON DICKINSON EURO FINANCE S.À R.L.
as Issuer
BECTON, DICKINSON AND COMPANY
as Guarantor
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of August 13, 2021
0.334% Notes due 2028
1.336% Notes due 2041
TABLE OF CONTENTS
|
|
|
Page
|
|
|
|
|
|
ARTICLE I
|
|
|
|
|
|
Section 1.1
|
Definitions.
|
2
|
|
Section 1.2
|
Terms of the Notes
|
5
|
|
Section 1.3
|
Interest
|
7
|
|
Section 1.4
|
Guarantee
|
7
|
|
Section 1.5
|
Issuance in Euro
|
7
|
|
Section 1.6
|
Optional Redemption
|
7
|
|
Section 1.7
|
Offer to Repurchase Upon Change of Control Triggering Event
|
8
|
|
Section 1.8
|
Payment of Additional Amounts
|
10
|
|
Section 1.9
|
Redemption for Tax Reasons
|
12
|
|
|
|
|
|
ARTICLE II
MISCELLANEOUS
|
|
|
|
|
|
Section 2.1
|
Business Day
|
13
|
|
Section 2.2
|
Confirmation of Indenture
|
13
|
|
Section 2.3
|
Concerning the Trustee
|
13
|
|
Section 2.4
|
Governing Law
|
13
|
|
Section 2.5
|
Separability
|
13
|
|
Section 2.6
|
Duplicate Originals
|
13
|
|
Section 2.7
|
No Benefit
|
13
|
|
|
|
|
|
Exhibit A
|
FORM OF NOTE
|
|
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental
Indenture”), dated as of August 13, 2021, among Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à
responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B234229
(the “Company”), Becton, Dickinson and Company, a New Jersey corporation (the “Guarantor”),
and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company, the Guarantor and the Trustee executed and delivered an indenture, dated as of May 17, 2019 (the “Base Indenture” and, as supplemented by this Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time of its debentures, notes or other evidences of indebtedness to be issued in one or more series, which may be fully and
unconditionally guaranteed by the Guarantor.
WHEREAS, the Company has authorized the issuance of €900,000,000 aggregate principal amount of 0.334% Notes due 2028 (the “2028 Notes”) and €900,000,000 aggregate principal amount of 1.336% Notes due 2041 (the “2041 Notes” and, collectively with the 2028 Notes, the “Notes”).
WHEREAS, each of the Company and the Guarantor desire to enter into this Supplemental Indenture pursuant to Section 9.01 of the Base
Indenture to establish the form and terms of the Notes in accordance with Sections 2.01 and 2.03 of the Base Indenture.
WHEREAS, the Guarantor desires to guarantee the Notes (the “Guarantees”)
on the terms set forth in Article 10 of the Base Indenture.
WHEREAS, Section 9.01(f) of the Base Indenture permits the Company and the Trustee to enter into an indenture supplemental to the Base
Indenture to make any change that does not materially and adversely affect the rights of any Holder of outstanding Securities.
WHEREAS, the changes to the Base Indenture contemplated in this Third Supplemental Indenture comply with the requirements of Section
9.01(f).
WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Base
Indenture.
WHEREAS, all things necessary to make this Supplemental Indenture a valid and legally binding agreement according to its terms have been
done.
NOW, THEREFORE, for and in consideration of the foregoing premises and for other good and valuable consideration, the Company, the
Guarantor and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:
ARTICLE I
Section 1.1 Definitions.
(1) Capitalized terms used
but not defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.
(2) A term defined anywhere
in this Supplemental Indenture has the same meaning throughout.
(3) The singular includes the
plural and vice versa.
(4) Headings are for
convenience of reference only and do not affect the interpretation.
(5) As used herein, the
following defined terms shall have the following meanings with respect to the Notes and this Supplemental Indenture only:
“Business Day” means any
day that is not a Saturday or Sunday and that is not a day on which banking institutions are authorized or obligated by law or executive order to close in the City of New York or London and on which the Trans-European Automated Real-time Gross
Settlement Express Transfer system (the TARGET2 system), or any successor thereto, operates.
“Change of Control” means
the occurrence of any one of the following: (i) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of
the assets of the Guarantor and its subsidiaries taken as a whole to any Person (including any “person”(as that term is defined in Section 13(d)(3) of the Exchange Act)) other than to the Guarantor or one of its subsidiaries; (ii) the consummation of
any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person”(as that term is used in Section 13(d)(3) of the Exchange Act)), other than us or one of our subsidiaries,
becomes the “beneficial owner”(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Guarantor or other Voting Stock into which the Guarantor’s Voting Stock is
reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (iii) the Guarantor consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the
Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Guarantor or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the
shares of the Voting Stock of the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving Person immediately after giving effect to the
transaction; or (iv) the adoption of a plan relating to the liquidation or dissolution of the Guarantor. Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (a) the Guarantor becomes a direct or indirect
wholly-owned subsidiary of a holding company and (b) (x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Guarantor’s Voting Stock
immediately prior to that transaction or (y) immediately following that transaction, no Person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event”
means the Notes of a series are rated below Investment Grade by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing on
the date of the first public announcement by the Guarantor of any Change of Control (or pending Change of Control) and ending 60 days following consummation of that Change of Control (which Trigger Period will be extended following consummation of a
Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings downgrade and the downgrade would result in a Change of Control Triggering Event). Unless at least two of the Rating Agencies
are providing a rating for the Notes of a series at the commencement of any Trigger Period, the Notes of such series will be deemed to be rated below Investment Grade by the Rating Agencies during that Trigger Period. Notwithstanding the foregoing,
no Change of Control Triggering Event will be deemed to have occurred in connection with (i) any particular Change of Control unless and until such Change of Control has actually been consummated or (ii) any reduction in rating if the Rating Agencies
making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at the Company’s request that the reduction was the result, in whole or in part, of any event or
circumstance comprised of or arising as a result of, or in respect of, a Change of Control (whether or not the Change of Control shall have occurred at the time of the reduction in rating).
“Clearstream” means Clearstream Banking S.A.
“Common Safekeeper” means, with respect to
Notes issued in the form of a Global Note in accordance with the New Safekeeping Structure, Clearstream, which is the entity elected by the Paying Agent as Common Safekeeper, or such successor as Clearstream shall designate.
“Common Service Provider” means, with respect
to Notes issued in the form of a Global Note in accordance with the New Safekeeping Structure, The Bank of New York Mellon, London Branch, which is the entity appointed by the ICSDs to service the Notes, or such successor as the ICSDs shall
designate.
“Code” means the U.S.
Internal Revenue Code of 1986, as amended.
“Comparable Government Bond Rate” means the
yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, of the Comparable Government Bond on the basis of the middle market
price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by the Company.
“Comparable Government Bond” means, in
relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German federal government bond whose maturity is closest to the maturity of the Notes to be redeemed (assuming
such notes to be redeemed matured on May 13, 2028 (three months prior to the maturity date of the 2028 Notes) and February 13, 2041 (six months prior to the maturity date of the 2041 Notes)), or if such independent investment bank in its discretion
determines that such similar bond is not in issue, such other German federal government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government bonds selected by the
Company, determine to be appropriate for determining the Comparable Government Bond Rate.
“euro” or “€” means the lawful currency of the member states of the European Monetary Union that have adopted the euro as their currency.
“Euroclear” means Euroclear Bank SA/NV.
“Fitch” means Fitch
Ratings, Inc. and its successors.
“Global Note(s)” means one or more permanent,
registered securities in global form and includes any Global Note intended to be held under the New Safekeeping Structure and registered in the name of a nominee for the Common Safekeeper.
“ICSD(s)” means Clearstream and/or Euroclear,
as the case may be and/or any additional or alternative clearing system approved by the Company (provided that such additional or alternative clearing system must also be authorized to hold a Global Note as eligible collateral for Eurosystem monetary
policy and intra-day credit operations) collectively.
“Investment Grade” means a
rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by
Fitch (or its equivalent under any successor rating category of Fitch) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Guarantor in accordance with the definition of “Rating
Agency.”
“Moody’s” means Moody’s
Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“New Safekeeping Structure” or “NSS” means a structure where a Global Note is registered in the name of a Common Safekeeper (or its nominee) for Euroclear and/or Clearstream and will be deposited on or about the issue date with
the Common Safekeeper for Euroclear and/or Clearstream.
“Paying Agent” means The
Bank of New York Mellon, London Branch, or any successor thereto.
“Person” means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Rating Agency” means each
of Fitch, Moody’s and S&P; provided, that if any of Fitch, Moody’s or S&P ceases to provide rating services to issuers or investors or fails to make a rating of the Notes of a series publicly available for reasons outside of the Company’s or
the Guarantor’s control, the Company may appoint a replacement for that Rating Agency.
“Remaining Scheduled Payments” means the
remaining scheduled payments of the principal and interest on the Notes called for redemption that would be due after the related redemption date but for such redemption up to May 13, 2028 (three months prior to the maturity date of the 2028 Notes)
with respect to the 2028 Notes and February 13, 2041 (six months prior to the maturity date of the 2041 Notes) with respect to the 2041 Notes; provided, however, that, if such redemption date is not an interest payment date with respect to such
Notes, the amount of the next scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
“S&P” means S&P
Global Ratings and its successors.
“Voting Stock” of any
specified Person as of any date means the capital stock of that Person that is at the time entitled to vote generally in the election of the board of directors of that Person.
Section 1.2 Terms of the Notes.
(1) Designation and Principal Amount.
(a) The
2028 Notes shall be issued by the Company and shall constitute a separate series of Notes having the title ”0.334% Notes due 2028”, which is initially
limited in aggregate principal amount to €900,000,000.
(b) The
2041 Notes shall be issued by the Company and shall constitute a separate series of Notes having the title ”1.336% Notes due 2041”, which is initially
limited in aggregate principal amount to €900,000,000.
In the case of a Global Note intended to be held under the New Safekeeping Structure, save for the purposes of
determining Notes that are outstanding for consent or voting purposes under the Base Indenture, the Trustee shall rely on the records of the ICSDs in relation to any determination of the principal amount outstanding of such Global Note. For this
purpose, “records” means the records that each of the ICSDs holds for its customers which reflect the amount of such customer’s interest in the Notes.
(2) Maturity.
(a) The
2028 Notes will mature on August 13, 2028.
(b) The
2041 Notes will mature on August 13, 2041.
(3) Authorized Denominations. Each series of the Notes will be issued in fully registered form in minimum denominations of €100,000 and integral multiples of €1,000 in
excess thereof. The registered Holder of a Note will be treated as its owner for all purposes. Only registered Holders will have rights under the Indenture governing the Notes.
(4) Additional Notes. The Company may, from time to time, without notice to or the consent of the existing Holders of any series of Notes, issue additional Notes of such
series under the Indenture having the same terms as the applicable series of Notes in all respects, except for issue date, issue price and the initial interest payment date. Any such additional Notes shall be consolidated with and form a single
series with the applicable series of Notes.
(5) Authentication. The Notes will be issued in the form of Global Notes, deposited with, or on behalf of, the Common Safekeeper and registered in the name of a nominee
of Clearstream as Common Safekeeper, for credit by the Common Safekeeper to the respective accounts of beneficial owners represented thereby (or such other accounts as they may direct). Holders of beneficial interests in the Notes will not be
entitled to receive physical delivery of certificated notes except in certain limited circumstances. The Trustee may authenticate the Notes with manual signature.
(6) Form of Effectuation Instruction of the Note. The Paying Agent’s form of Effectuation Instructions shall be in substantially the following form:
Issuer: Becton Dickinson Euro Finance S.à r.l.,
Currency and nominal Amount: €[ ]
ISIN: [ ]
Dear Sir/Madam,
We hereby instruct you to effectuate the global note.
Dated: August 13, 2021
|
|
THE BANK OF NEW YORK MELLON, LONDON BRANCH
|
|
|
|
|
|
As Paying Agent
|
|
|
|
|
By:
|
|
|
|
Authorized Signatory
|
(7) Effectuation. No Global Note shall be valid or obligatory for any purposes until it has been effectuated for or on behalf of the Common Safekeeper.
Section 1.3 Interest. The Company or, in the case of the Guarantees, the Guarantor, will make interest payments to the Person in whose name the Notes are registered on the
Business Day on which each of Euroclear and Clearstream is open for business preceding the interest payment date of each year. Payments of interest and principal on Notes in global form registered in the name of a nominee of the Common Safekeeper,
including payments made upon any redemption of the Notes, will be made in immediately available funds to the ICSDs or to the nominee of the Common Safekeeper, as the case may be, as the registered holder of the Global Notes. The rights of Holders
of beneficial interests of Notes to receive the payments of interest on such Notes are subject to the applicable procedures of the Common Safekeeper. If any interest payment date is not a Business Day, payment of interest will be made on the next
day that is a Business Day and no interest will accrue as a result of such delayed payment on amounts payable from and after such interest payment date to the next succeeding Business Day. Interest on each series of Notes will be computed on the
basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on each series of Notes (or from August 13, 2021, if no interest has
been paid on the Notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association. Each series of Notes
shall bear interest at the following rates:
(1) 0.334% per annum in the
case of the 2028 Notes, and
(2) 1.336% per annum in the
case of the 2041 Notes.
Section 1.4 Guarantees. The Notes and the Company’s obligations under the Indenture are fully and unconditionally guaranteed by the Guarantor pursuant to Article 10 of the
Base Indenture.
Section 1.5 Issuance in Euro. Initial Holders of the Notes will be required to pay for the Notes in euros, and principal, premium, if any, and interest payments on the
Notes, including any payments made upon any redemption of the Notes, will be payable in euros. If, on or after August 10, 2021, the euro is unavailable to the Company or, in the case of the Guarantees, the Guarantor, due to the imposition of
exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or the euro is no longer used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of
transactions by public institutions within the international banking community, then all payments in respect of the Notes or the Guarantees will be made in U.S. dollars until the euro is again available to the Company or, in the case of the
Guarantees, the Guarantor, or so used. The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant
payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent euro/U.S. dollar exchange rate available on or prior to the second Business Day prior to the relevant payment date,
as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event of Default under the Notes or the Indenture governing the Notes. Neither the Trustee nor the Paying Agent
shall have any responsibility for any calculation or conversion in connection with the foregoing.
Section 1.6 Optional Redemption.
(1) The 2028 Notes are
redeemable, in whole or in part, at the option of the Company, at any time prior to May 13, 2028 (three months prior to the maturity date of the 2028 Notes) at a redemption price, as determined by the Company, equal to the greater of (i) 100% of
the principal amount of the 2028 Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments on the 2028 Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL
(ICMA)) at the applicable Comparable Government Bond Rate, plus 20 basis points, plus accrued and unpaid interest to, but excluding, the date of redemption on the principal balance of the 2028 Notes being redeemed. At any time on or after May 13,
2028 (three months prior to the maturity date of the 2028 Notes), the 2028 Notes shall be redeemable, in whole or in part, at the option of the Company, at a redemption price equal to 100% of the principal amount of the 2028 Notes to be redeemed,
plus accrued and unpaid interest to the date of redemption on the principal balance of the 2028 Notes being redeemed.
(2) The 2041 Notes are
redeemable, in whole or in part, at the option of the Company, at any time prior to February 13, 2041 (six months prior to the maturity date of the 2041 Notes) at a redemption price, as determined by the Company, equal to the greater of (i) 100% of
the principal amount of the 2041 Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments on the 2041 Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL
(ICMA)) at the applicable Comparable Government Bond Rate, plus 25 basis points, plus accrued and unpaid interest to, but excluding, the date of redemption on the principal balance of the 2041 Notes being redeemed. At any time on or after February
13, 2041 (six months prior to the maturity date of the 2041 Notes), the 2041 Notes shall be redeemable, in whole or in part, at the option of the Company, at a redemption price equal to 100% of the principal amount of the 2041 Notes to be redeemed,
plus accrued and unpaid interest to the date of redemption on the principal balance of the 2041 Notes being redeemed.
(3) The Trustee shall have no
responsibility for calculating any redemption prices under this Section 1.6.
(4) Notice of any redemption
shall be mailed or otherwise transmitted in accordance with the applicable procedures of the ICSDs to the Holders of the applicable Notes or portions thereof called for redemption not less than 10 days and not more than 60 days before the
redemption date of the Notes being redeemed. Unless the Company defaults on payment of the redemption price, on and after the redemption date, the Notes or any portion of the Notes called for redemption shall stop accruing interest. On or before
any redemption date, the Company shall deposit with the Paying Agent or the Trustee money sufficient to pay the accrued interest on the Notes to be redeemed and their redemption price. A partial redemption of Notes may be effected pursuant to
applicable procedures of the ICSDs’ or the Paying Agent and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for such Notes or any integral multiple of €1,000 in excess thereof) of the principal
amount of such Notes of a denomination larger than the minimum authorized denomination for such Notes.
Section 1.7 Offer to Repurchase Upon Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event with respect to any series of Notes,
unless the Company has exercised its right to redeem the applicable series of Notes pursuant to Section 1.6 or Section 1.9 hereof, each Holder of outstanding Notes of the applicable series will have the right to require the Company to purchase all
or a portion of that Holder’s Notes (in integral multiples of €1,000) pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any,
to, but excluding, the date of purchase (the “Change of Control Payment”), subject to the rights of Holders of such Notes on the relevant record date to receive interest due on the relevant interest payment date.
(1) Within 30 days following
the date upon which the Change of Control Triggering Event has occurred with respect to any series of Notes, or at the Company’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, the Company
shall send in accordance with the applicable procedures of Euroclear or Clearstream, a notice to each Holder of Notes of the applicable series, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer. The
notice shall describe the transaction or transactions constituting the Change of Control Triggering Event and offer to repurchase the Notes on the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice
is sent, other than as may be required by law (the “Change of Control Payment Date”). If the notice is sent prior to the date of consummation of the Change
of Control, it shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
(2) If Holders of Notes elect
to have Notes purchased pursuant to a Change of Control Offer, they must surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the
notice, or transfer their Notes to the Trustee by book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third Business Day prior to the Change of Control Payment Date. On or prior to
10:00 a.m., London time, on the Business Day immediately preceding the Change of Control Payment Date, the Company shall, to the extent lawful, deposit with the Paying Agent or the Trustee an amount equal to the Change of Control Payment in respect
of all the Notes or portions of the Notes properly tendered.
(3) The Change of Control
Offer may be accepted for less than the entire principal amount of a Note, but in that event the principal amount of such Note remaining outstanding after repurchase must be equal to €100,000 or an integral multiple of €1,000 in excess thereof. On
the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all Notes of the applicable series or portions of such Notes properly tendered pursuant to the Change of Control Offer and (ii) deliver or cause to
be delivered to the Trustee the Notes properly accepted. The Paying Agent or the Trustee, as applicable, shall promptly deliver to each Holder of the Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and deliver (or cause to be transferred by book entry) to each Holder of the Notes a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any.
(4) The Company shall not be
required to make a Change of Control Offer with respect to a series of Notes if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and that third
party purchases all Notes of the applicable series properly tendered and not withdrawn under its offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions herein, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations under the provisions herein by virtue of such conflicts.
Section 1.8 Payment of Additional Amounts. The Company or, in the case of the Guarantees, the Guarantor, will, subject to the exceptions and limitations set forth below, pay
as additional interest on the Notes such additional amounts as are necessary in order that the net payment by the Company or a Paying Agent of the principal of and interest on each of the Notes to a Holder, after withholding or deduction solely
with respect to any present or future tax, assessment or other governmental charge imposed by Luxembourg, the United States or any other jurisdiction in which the Company or the Guarantor or, in each case, any successor thereof (including a
continuing Person formed by a consolidation with the Company or Guarantor, into which the Company or Guarantor is merged, or that acquires or leases all or substantially all of the property and assets of the Company or the Guarantor) may be
organized, as applicable, or any political subdivision thereof or therein having the power to tax (a “Taxing Jurisdiction”), will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing
obligation to pay additional amounts will not apply:
(1) to any tax, assessment or
other governmental charge that would not have been imposed but for the Holder (or the beneficial owner for whose benefit such Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder, or a person holding a
power over an estate or trust administered by a fiduciary Holder, being treated as:
(a) being
or having been present in, or engaged in a trade or business in, the relevant Taxing Jurisdiction, or having or having had a permanent establishment in such Taxing Jurisdiction;
(b) having
a current or former connection with the relevant Taxing Jurisdiction (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the
Indenture), including being or having been a citizen of such Taxing Jurisdiction or treated as being or having been a resident thereof;
(c) being
or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States federal income tax purposes, a foreign tax exempt organization, or a corporation that has accumulated earnings to
avoid United States federal income tax;
(d) being
or having been a “10-percent shareholder”, as defined in section 871(h)(3) of the Code, or any successor provision, of the Company or the Guarantor; or
(e) being
a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, within the meaning of section 881(c)(3) of the Code or any successor provision;
(2) to any Holder that is not
the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member
of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or
other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or
connection with the relevant Taxing Jurisdiction of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the relevant Taxing Jurisdiction or any taxing authority therein or by an applicable income tax
treaty to which the relevant Taxing Jurisdiction is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(4) to any tax, assessment or
other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment;
(5) to any estate,
inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or
other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the
date on which payment thereof is duly provided for, whichever occurs later;
(7) to any tax assessment or
other governmental charge required to be withheld or deducted that is imposed on a payment pursuant to sections 1471 through 1474 of the Code (or any amended or successor version of such sections that is substantively comparable and not materially
more onerous to comply with), any Treasury Regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any
agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(8) to any tax assessment or
other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for,
whichever occurs later;
(9) to any tax, assessment or
other governmental charge that is imposed by reason of the failure of the beneficial owner to fulfill the statement requirements of section 871(h) or section 881(c) of the Code;
(10) to any tax imposed
pursuant to section 871(h)(6) or section 881(c)(6) of the Code (or any amended or successor provisions); or
(11) in the case of any
combination of the above clauses (1) through (10) under this Section 1.8.
Except as specifically provided under this Section 1.8, the Company or the Guarantor will not be required to pay additional amounts in
respect of any tax, assessment or other governmental charge.
As used under this Section 1.8 and under Section 1.9, the term “United States” means the United States of America, any state thereof, and the District of Columbia, and the term “United States person”
means (i) any individual who is a citizen or resident of the United States for United States federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not treated as a United States person for United States federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of
its source, or (iv) any trust if a United States court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to
treat the trust as a United States person.
Section 1.9 Redemption for Tax Reasons. If, as a result of a Change in Law, the Company becomes or, based upon a written opinion of independent counsel selected by the
Company, will become obligated to pay additional amounts pursuant to Section 1.8 hereof with respect to the Notes, then the Company may at any time at the Company’s option redeem, in whole, but not in part, the Notes on not less than 30 nor more
than 60 days’ prior notice, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest on the Notes to be redeemed to, but excluding, the date fixed for redemption. For purposes of this Section 1.9, “Change in
Law” means any change in, or amendment to, the laws of a Taxing Jurisdiction, or an official interpretation thereof that is announced or becomes effective on or after (i) with respect to the United States and Luxembourg as the initial applicable
Taxing Jurisdictions, August 10, 2021 or (ii) with respect to any other Taxing Jurisdiction, the date on which such jurisdiction becomes a Taxing Jurisdiction for the Company or the Guarantor, as applicable.
Section 1.10 Eurosystem eligibility. The Notes are intended to be held in a manner which will allow Eurosystem eligibility. This simply means that the Notes are intended upon
issue to be deposited with one of the ICSDs as Common Safekeeper (and registered in the name of a nominee of one of the ICSDs acting as Common Safekeeper) and does not necessarily mean that the Notes will be recognized as eligible collateral for
Eurosystem monetary policy and intra-day credit operations by the Eurosystem either upon issue or at any or all times during their life. Such recognition will depend upon the European Central Bank being satisfied that Eurosystem eligibility
criteria have been met.
Section 1.11 Destroy Option. In the case of a Global Note intended to be held under the New Safekeeping Structure, the Common Safekeeper may destroy such Global Note in
accordance with the normal procedures of the Common Safekeeper upon maturity and final redemption of such Global Note.
ARTICLE II
MISCELLANEOUS
Section 2.1 Business Day. If any interest payment date is not a Business Day, payment of interest will be made on the next day that is a Business Day and no interest will
accrue as a result of such delayed payment on amounts payable from and after such interest payment date to the next succeeding Business Day.
Section 2.2 Confirmation of Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the
Base Indenture, this Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Section 2.3 Concerning the Trustee. In carrying out its responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses
under the Indenture. The recitals contained herein and in the Notes (except the Trustee’s certificate of authentication) shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the
correctness of the same. Neither the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this Supplemental Indenture or the Notes and (b) shall be accountable for the Company’s use or application of the
proceeds from the Notes.
Section 2.4 Governing Law. The laws of the State of New York shall govern this Supplemental Indenture, the Notes and the Guarantees. The provisions of articles 470-1 to
470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded.
Section 2.5 Separability. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.6 Duplicate Originals. The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties
hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 2.7 No Benefit. Nothing in this Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns,
and the Holders, any benefit or legal or equitable rights, remedy or claim under this Supplemental Indenture or the Base Indenture.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the date first above
written.
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BECTON DICKINSON EURO FINANCE S.À R.L.
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as the Company
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By:
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/s/ Alessandro Luino
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Name:
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Alessandro Luino
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Title:
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Class A Manager
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BECTON, DICKINSON & COMPANY
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as the Guarantor
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By:
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/s/ Christopher Reidy
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Name:
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Christopher Reidy
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Title:
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Executive Vice President, Chief Financial Officer and Chief Administrative Officer
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
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as Trustee
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By:
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/s/ Julie Hoffman Ramos
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Name:
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Julie Hoffman Ramos
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Title:
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Vice President
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EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE NOMINEE OF THE ENTITY
APPOINTED AS COMMON SAFEKEEPER FOR EUROCLEAR BANK SA/NV (“EUROCLEAR”) AND CLEARSTREAM BANKING S.A. (“CLEARSTREAM”). TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART, TO NOMINEES OF THE COMMON SAFEKEEPER OR TO
A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
[ ]% NOTES DUE 20[ ]
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No. [ ]
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€[ ]
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CUSIP No.: [ ]
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ISIN No. [ ]
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Common Code: [ ]
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Financial Short Name: [ ]
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Classification of Financial Instruments Code: [ ]
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This certifies that the Person whose name is entered in the Security Register maintained by the Registrar is registered as the Holder of
the aggregate principal amount of €[ ] of [ ]% Notes Due [ ].
BECTON DICKINSON EURO FINANCE S.À R.L.
for value received, hereby promises to pay to the registered Holder hereof, or registered assigns, the principal sum of €[ ] on [ ] and to pay
interest, on [ ] of each year, commencing [ ], on said principal sum at the rate of [ ]% per annum, from [ ] or from the most recent interest payment date to which interest has been paid or provided for, as the case may be, until
payment of said principal sum has been made or duly provided for. The interest so payable on any [ ] shall, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the Person in whose name this Note
is registered at the close of business on the Business Day on which each of Clearstream and Euroclear is open for business immediately preceding the applicable interest payment date.
Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual
number of days from and including the last date on which interest was paid (or from [ ], if no interest has been paid on the Notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as
ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
Each Holder of this Note, by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described
herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance
by such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the
certificate of authentication hereon shall have been signed by or on behalf of the Trustee and until it has been effectuated for and on behalf of the Common Safekeeper. The provisions of this Note are continued on the reverse side hereof, and such
continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.02 of the Base Indenture.
Date: [ ]
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BECTON DICKINSON EURO FINANCE S.À R.L.
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as the Company
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By:
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Name:
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Title:
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CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities of the series referred to herein issued pursuant to the within-mentioned Indenture.
Date: [ ]
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
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as Trustee
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By:
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Authorized Signatory
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EFFECTUATED for and on behalf of CLEARSTREAM BANKING S.A., as Common Safekeeper, without recourse, warranty or liability.
Date: [ ]
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CLEARSTREAM BANKING S.A.,
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as Common Safekeeper
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By:
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Authorized Signatory
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Becton Dickinson Euro Finance S.à r.l
[ ]% Notes Due 20[ ]
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (the “Securities”) of Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies
Register under number B234229 (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture for the Company’s
unsecured debt securities, dated as of May 17, 2019 (the “Base Indenture”), duly executed and delivered by and among the Company, Becton, Dickinson
and Company, a New Jersey corporation (the “Guarantor”), and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), as supplemented by the Third Supplemental Indenture, dated as of August [13], 2021 (the “Supplemental Indenture”), among the Company, the Guarantor and the Trustee. The Notes are subject to a Paying Agency Agreement, dated as of August [13], 2021 (the “Paying Agency Agreement”), among the Company, the Guarantor and The Bank of New York Mellon,
London Branch, as Paying Agent (the “Paying Agent”). The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to
herein as the “Indenture.” The Notes may be issued in one or more series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as
provided in the Indenture. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to €[ ] (except as provided in the Indenture). Terms defined in the Indenture have the same definitions
herein unless otherwise specified.
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1.
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Method of Payment. Payment of the principal of and interest on this Note will
be made at the office or agency of the Company maintained for that purpose in the City of London, England, which shall be initially the corporate trust office of The Bank of New York Mellon, London Branch, located at One Canada Square, London
E14 5AL.
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2.
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Paying Agent and Registrar. Initially, The Bank of New York Mellon, London
Branch will act as Paying Agent. The Bank of New York Mellon Trust Company, N.A. will initially act as Registrar for the Notes. The Company may change any Paying Agent upon notice to the Trustee.
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3.
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Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“TIA”) as in effect on the date the Indenture
is qualified. The Notes are subject to all such terms, and holders of such Notes are referred to the Indenture and TIA for a statement of such terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture,
the terms of the Indenture shall prevail. The Notes are senior unsecured obligations of the Company.
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4.
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Issuance in Euro. Initial Holders of the Notes will be required to pay for
the Notes in euros, and principal, premium, if any, and interest payments on the Notes, including any payments made upon any redemption of the Notes, will be payable in euros. If, on or after August [10], 2021, the euro is unavailable to the
Company or, in the case of the Guarantee, the Guarantor, due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or the euro is no longer used by the then member states of the European
Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of the Notes or the Guarantee will be made in
U.S. dollars until the euro is again available to the Company or, in the case of the Guarantees, the Guarantor, or so used. The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal
Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent euro/U.S. dollar
exchange rate available on or prior to the second Business Day prior to the relevant payment date, as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event
of Default under the Notes or the Indenture governing the Notes. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing.
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5.
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Optional Redemption. The Notes are redeemable, in whole or in part, at the
option of the Company, at any time prior to [ ] ([ ] months prior to the maturity date) at a redemption price, as determined by the Company, equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and
(ii) the sum of the present values of the Remaining Scheduled Payments on the Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate,
plus [ ] basis points, plus accrued and unpaid interest to, but excluding the date of redemption on the principal balance of the Notes being redeemed. At any time on or after [ ] ([ ] months prior to their maturity date), the
Notes shall be redeemable, in whole or in part, at the option of the Company, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to the date of redemption on the principal
balance of the Notes being redeemed.
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6.
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Offer to Repurchase Upon Change of Control Triggering Event. Holders of the
Notes may, under the circumstances specified in the Indenture, have the right to require the Company to purchase all or a portion of their Notes (in integral multiples of €1,000) pursuant to a Change of Control Offer. Holders of Notes
electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” below completed, to the Paying Agent at the address specified in the
notice, or transfer their Notes to the Trustee by book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third Business Day prior to the Change of Control Payment Date. The Change
of Control Offer may be accepted for less than the entire principal amount of a Note, but in that event the principal amount of such Note remaining outstanding after repurchase must be equal to €100,000 or an integral multiple of €1,000 in
excess thereof.
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7.
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Transfers; Exchanges. Upon the presentment for registration of transfer of
this Note at the office or agency of the Company or the Guarantor designated for such purpose pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee
in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
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Prior to due presentment for registration of transfer of this Note, the Company, the Guarantor, the Trustee or any Registrar, Paying
Agent or Authenticating Agent, may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of
receiving payment hereof, or an account hereof, and for all other purposes, and the Company, the Guarantor, the Trustee and any Registrar, Paying Agent and Authenticating Agent shall not be affected by any notice to the contrary.
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8.
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Payment of Additional Amounts and Redemption for Tax Reasons. The provisions
of Sections 1.8 and 1.9 of the Supplemental Indenture shall apply to the Notes. Whenever the payment of the principal of or interest or any other amounts on, or in respect of, this Note is mentioned, in any context, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms of the Indenture, and express mention of the payment
of Additional Amounts in any provision of this series of Notes shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made.
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9.
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Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in the denominations of €100,000 or any integral multiple of €1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Notes may be presented for exchange or for
registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the Registrar) at the office or agency of the Company or the Guarantor designated for such purpose (or
otherwise in accordance with applicable procedures of Euroclear and Clearstream). No service charge shall be made for any registration of transfer or exchange, but a Holder of such Notes may be required to pay any applicable taxes or other
governmental charges.
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10.
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Persons Deemed Owners. The registered Holder of a Note will be treated as its
owner for all purposes. Only registered holders will have rights under the Indenture governing the Notes.
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11.
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Repayment to the Company. Subject to the terms of the Indenture, any funds
deposited with the Trustee or Paying Agent, or then held by the Company, in trust for the payment of the principal of and any interest on any Security of any series and remaining unclaimed for two years after such principal and any interest
has become due and payable shall be paid to the Company upon written request by the Company, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
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12.
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Amendments, Supplements and Waivers. 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 Guarantor and the rights of the Holders of the Securities of any series at any time by the Company, the Guarantor
and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the outstanding Securities of such series, each series voting separately. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the outstanding Securities, on behalf of the Holders of all the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or
on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Security.
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13.
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Defaults and Remedies. In case an Event of Default, as defined in the
Indenture, with respect to the Notes shall have occurred and be continuing, the principal hereof and interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
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14.
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Trustee, Paying Agent and Registrar May Hold Securities. The Trustee, subject
to certain limitations imposed by the TIA, or any Paying Agent or Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or
Registrar.
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15.
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No Recourse Against Others. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer, director or
employee, as such, of the Company, the Guarantor or of any of either of their respective successors, either directly or through the Company or the Guarantor or any successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such personal liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
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16.
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Discharge of Indenture. The Indenture contains certain provisions pertaining
to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein.
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17.
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Authentication. This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof and until this Note has been effectuated for and on behalf of the Common Safekeeper.
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18.
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Guarantee. This Note is fully and unconditionally guaranteed by the
Guarantor, as provided in Article 10 of the Base Indenture and Section 1.4 of the Supplemental Indenture.
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19.
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Governing Law. The laws of the State of New York shall govern the Base
Indenture, the Supplemental Indenture and this Note. The provisions of articles 470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to a Change of Control Offer, check the box:
☐ Change of Control Offer
If you want to elect to have only part of this Note purchased by the Company pursuant to a Change of Control Offer, state the amount: €
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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 this Note)
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Tax I.D. Number:
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*Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
GUARANTEE
For value received, Becton, Dickinson and Company hereby fully and unconditionally guarantees to the holder of this Note and to the Trustee and its
successors and assigns (1) the full and punctual payment when due, whether at stated maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under Article 10 of the Indenture (including obligations to the Trustee) and
this Note, whether for payment of principal of, or interest on or premium, if any, on, this Note and all other monetary obligations of the Company under Article 10 of the Indenture and this Note and (2) the full and punctual performance within
applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under Article 10 of the Indenture and this Note. This Guarantee will not become effective until the Trustee or Authenticating
Agent duly executes the certificate of authentication on this Note and until this Note has been effectuated for and on behalf of the Common Safekeeper. This Guarantee shall be governed by the laws of the State of New York. The provisions of articles
470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded.
Dated: [ ]
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BECTON, DICKINSON AND COMPANY
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By:
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Name:
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Title:
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Exhibit A-11
