UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 19, 2012
FRANKLIN RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-09318 | 13-2670991 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
One Franklin Parkway, San Mateo, California 94403
(Address of principal executive offices) (Zip code)
Registrants telephone number, including area code: (650) 312-2000
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 | Entry into a Material Definitive Agreement. |
On September 19, 2012, Franklin Resources, Inc. (the Company) entered into: (i) an underwriting agreement (the 2017 Underwriting Agreement) with Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives (the Representatives) of the several underwriters named therein (the Underwriters), pursuant to which the Company agreed to sell to the Underwriters $300,000,000 aggregate principal amount of its 1.375% Notes due 2017 (the 2017 Notes) and (ii) an underwriting agreement (the 2022 Underwriting Agreement, and together with the 2017 Underwriting Agreement, the Underwriting Agreements) with the Representatives, pursuant to which the Company agreed to sell to the Underwriters $300,000,000 aggregate principal amount of its 2.800% Notes due 2022 (the 2022 Notes, and together with the 2017 Notes, the Notes), for sale by the Underwriters (collectively, the Offering) pursuant to the Companys registration statement on Form S-3 (File No. 333-183969) (the Registration Statement). On September 19, 2012, the Company priced the Offering and on September 24, 2012, the Offering closed. The Company realized approximately $593.9 million in proceeds from the Offering, net of underwriting discounts and commissions. The Company intends to use approximately $305 million of the net proceeds of the Offering to redeem all of its outstanding 2.000% notes due May 20, 2013, approximately $183 million to finance its acquisition of a majority stake in K2 Advisors Holdings LLC and the remainder for general corporate purposes. The foregoing does not constitute a notice of redemption for or an obligation to issue a notice of redemption for the Companys outstanding notes.
The Underwriters have performed investment banking and advisory services for the Company and for certain of the Companys funds from time to time in the ordinary course, for which certain of the Underwriters may have received customary fees and expenses. These services have included acting as underwriters and distributors and providing financing. The Underwriters may, from time to time, engage in other transactions with and perform services for the Company and its funds in the ordinary course of their business.
The Notes were issued by the Company under an Indenture, dated as of May 19, 1994 (the Base Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to Chemical Bank, as Trustee (the Trustee), as amended and supplemented by a first supplemental indenture, dated as of October 9, 1996 (the First Supplemental Indenture) and a third supplemental indenture, dated as of September 24, 2012 (inclusive of the form of Global Note for each series of the Notes, the Third Supplemental Indenture). The Base Indenture as amended and supplemented by the First Supplemental Indenture and the Third Supplemental Indenture is referred to as the Indenture.
Interest on the Notes will be payable semi-annually on March 15 and September 15 of each year, beginning on March 15, 2013. The 2017 Notes will mature on September 15, 2017 and the 2022 Notes will mature on September 15, 2022. The Notes will be unsecured and unsubordinated obligations of the Company and will rank equal in right of payment with respect to each other and with all of the Companys existing and future unsubordinated indebtedness. The Notes will be structurally subordinated to all of the existing and future debt of the Companys subsidiaries.
The Company may redeem the Notes prior to maturity in whole or in part at any time, at its option, at certain make-whole redemption prices. In the case of any such redemption, the Company will also pay accrued and unpaid interest, if any, to the redemption date.
The Indenture contains, subject to exceptions, limitations on the Companys ability and the ability of certain of its subsidiaries to pledge voting stock or profit participating equity interests in the subsidiaries to secure other debt without also similarly securing the Notes equally and ratably. The Indenture also includes requirements that must be met if the Company consolidates or merges with, or sells all or substantially all of its assets to, another entity.
The Notes contain customary events of default, including:
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default in the payment of interest not cured within 30 days; |
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default in the payment of principal when due; |
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certain events of bankruptcy, insolvency or reorganization involving the Company or any significant subsidiary thereof, including the entry of any court order or decree related to these events; |
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default in the performance or breach of any covenant or warranty under the Indenture or the Notes not cured within 60 days after a written notice of default is given by the Trustee or the holders of at least 25% in aggregate principal amount of the outstanding Notes; and acceleration of indebtedness of the Company or any significant subsidiary thereof, or failure to pay any such debt at maturity, in a principal amount in excess of $75 million under the terms of the instrument under which such indebtedness was issued or secured, if such acceleration is not annulled within 30 days after a written notice of default is given by the Trustee or the holders of at least 25% in aggregate principal amount of the outstanding Notes. |
The summary of the terms of the Notes set forth above does not purport to be complete and is qualified in its entirety by reference to the text of the Underwriting Agreements and the Indenture. The 2017 Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K, the 2022 Underwriting Agreement is filed as Exhibit 1.2 to this Current Report on Form 8-K, the Base Indenture was filed as Exhibit 4.1 to the Registration Statement, the First Supplemental Indenture was filed as Exhibit 4.2 to the Registration Statement and the Third Supplemental Indenture is filed as Exhibit 4.1 to this Current Report on Form 8-K, and each of these documents is incorporated herein by reference.
Item 8.01. | Other Events |
In connection with the offering of the Notes, the Company is filing as Exhibit 5.1 hereto an opinion of counsel addressing the validity of the Notes. Such opinion is incorporated by reference into the Registration Statement.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
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Exhibit No. |
Description |
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1.1 | Underwriting Agreement for the 1.375% Notes due 2017, dated September 19, 2012, among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives of the several underwriters named therein | |
1.2 | Underwriting Agreement for the 2.800% Notes due 2022, dated September 19, 2012, among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives of the several underwriters named therein | |
4.1 | Third Supplemental Indenture, dated as of September 24, 2012 (inclusive of the forms of global notes of the Companys 1.375% Notes due 2017 and the Companys 2.800% Notes due 2022) | |
5.1 | Opinion of Weil, Gotshal & Manges LLP | |
23.1 | Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
FRANKLIN RESOURCES, INC. | ||||||||
Date: September 24, 2012 |
By: |
/s/ Kenneth A. Lewis |
||||||
Name: | Kenneth A. Lewis | |||||||
Title: | Chief Financial Officer |
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EXHIBIT INDEX
Exhibit No. |
Description |
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1.1 | Underwriting Agreement for the 1.375% Notes due 2017, dated September 19, 2012, among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives of the several underwriters named therein | |
1.2 | Underwriting Agreement for the 2.800% Notes due 2022, dated September 19, 2012, among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives of the several underwriters named therein | |
4.1 | Third Supplemental Indenture, dated as of September 24, 2012 (inclusive of the forms of global notes of the Companys 1.375% Notes due 2017 and the Companys 2.800% Notes due 2022) | |
5.1 | Opinion of Weil, Gotshal & Manges LLP | |
23.1 | Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5.1) |
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Exhibit 1.1
EXECUTION VERSION
Franklin Resources, Inc.
1.375% Notes Due 2017
Underwriting Agreement
New York, New York
September 19, 2012
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Franklin Resources, Inc., a corporation organized under the laws of Delaware (the Company), proposes to sell to the several underwriters named in Schedule II hereto (the Underwriters), for whom you (the Representatives) are acting as representatives, the principal amount of its securities identified in Schedule I hereto (the Securities), to be issued under an indenture dated as of May 19, 1994, between the Company and The Bank of New York Trust Company, N.A. as successor to Chemical Bank, as trustee (the Trustee), as supplemented by a first supplemental indenture dated October 9, 1996 and a third supplemental indenture to be dated as of September 24, 2012 (such indenture, as supplemented, the Indenture). To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms amend, amendment or supplement with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties . The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405, (the file number of which is set forth in Schedule I hereto) on Form S-3, including a related Base Prospectus, for registration under the Act
of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished
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to the Company by or on behalf of any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a well-known seasoned issuer as defined in Rule 405. The Company shall pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and has been 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, except where the failure to so qualify and be in good standing would not have, individually or in the aggregate, a material adverse effect on the financial condition or earnings, business affairs or business prospects of the Company
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and its subsidiaries considered as one enterprise (a Material Adverse Effect); and each subsidiary of the Company which is a significant subsidiary within the meaning of Regulation S-X promulgated under the Act (each, a Significant Subsidiary) has been duly incorporated and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of organization, to the extent applicable in such jurisdiction, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect.
(h) The Company has an authorized capitalization as set forth in the Preliminary Prospectus and the Final Prospectus under Actual in the section entitled Capitalization, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; all shares of capital stock of each subsidiary of the Company (except for directors qualifying shares) owned directly or indirectly by the Company, are owned free and clear of all liens, encumbrances, equities or claims.
(i) There is no franchise, contract or other document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in the Preliminary Prospectus and the Final Prospectus under the headings Description of the Notes, Description of Debt Securities, Plan of Distribution, Certain Material U.S. Federal Income Tax Consequences to Non-U.S. Holders and Certain ERISA Considerations insofar as such statements summarize legal matters, agreements and documents of the Company, legal proceedings or legal conclusions, fairly summarize, in all material respects, the matters referred to therein.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained or made under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus.
(l) Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws or similar organizational documents of the Company or any of its Significant Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its
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subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their properties, which in the case of clauses (ii) and (iii) could reasonably be expected to have a Material Adverse Effect.
(m) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly, in all material respects, the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and have been prepared in conformity with U.S. generally accepted accounting principles (GAAP) applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto.
(n) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus.
(o) The Company and its Significant Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Disclosure Package and the Final Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Significant Subsidiaries; and any real property and buildings held under lease by the Company and its Significant Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Significant Subsidiaries.
(p) Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its Certificate of Incorporation or by-laws, (ii) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree applicable
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to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any Significant Subsidiary or any of its or their properties, which violation or default referred to in clauses (ii) or (iii) above would have a Material Adverse Effect.
(q) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package and the Final Prospectus, is an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
(r) No Significant Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiarys capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiarys property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated by the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(s) The Company and each of its consolidated Significant Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto. The Company and its subsidiaries internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.
(t) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(u) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended,
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and the rules and regulations thereunder (the FCPA), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(v) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, in all material respects, and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(w) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, controlled affiliate or representative of the Company or any of its subsidiaries is an individual or entity (Person) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasurys Office of Foreign Assets Control (OFAC), the United Nations Security Council (UNSC), the European Union, Her Majestys Treasury (HMT), or other relevant sanctions authority (collectively, Sanctions), nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(x) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an investment company, as such term is defined in the Investment Company Act of 1940, as amended (the Investment Company Act); the Company is not required to register as an investment adviser with the Commission under the Investment Advisers Act of 1940, as amended (the Investment Advisers Act) and is not required to register as a broker-dealer with the Commission under the Exchange Act; and the Company is not required to be registered, licensed or qualified as a commodity trading advisor, a commodity pool operator or a futures commission merchant.
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(y) Each subsidiary of the Company required to be registered under the Investment Advisers Act is duly registered as an investment adviser with the Commission under the Investment Advisers Act, and in each jurisdiction where the conduct of its business requires regulatory authorization or license as an investment adviser, and such subsidiary is not prohibited from acting as an investment adviser or carrying on its business as now conducted or as contemplated in the Registration Statement by any applicable laws, rules, regulations, orders, by-laws or similar requirements, except as would not have a Material Adverse Effect.
(z) Each investment company or account for which the Company or any of its subsidiaries acts as investment adviser and which is required to be registered with the Commission as an investment company under the Investment Company Act is duly registered with the Commission as an investment company under the Investment Company Act, except as would not have a Material Adverse Effect.
(aa) Each subsidiary of the Company required to be registered as a broker-dealer with the Commission under the Exchange Act is duly registered as a broker-dealer with the Commission under the Exchange Act, and such subsidiary is not prohibited from acting as broker-dealer or carrying on its business as now conducted or as contemplated in the Registration Statement by any applicable laws, rules, regulations, orders, by-laws or similar requirements, except as would not have a Material Adverse Effect.
(bb) Each subsidiary of the Company required to be registered, licensed or qualified as a commodity trading advisor, a commodity pool operator or a futures commission merchant is duly registered, licensed or qualified in each jurisdiction where the conduct of its business requires such a registration, license or qualification, and such subsidiary is not prohibited from acting as a commodity trading advisor, a commodity pool operator or a futures commission merchant or carrying on its business as now conducted or as contemplated in the Registration Statement by any applicable laws, rules, regulations, orders, by-laws or similar requirements, except as would not have a Material Adverse Effect.
Any certificate signed by any authorized officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale . Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriters name in Schedule II hereto.
3. Delivery and Payment . Delivery of and payment for the Securities shall be made on the date and at the time specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the
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Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the Closing Date). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. Offering by Underwriters . It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements . The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) To prepare a final term sheet for the Securities, containing solely a description of final terms of the Securities and the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
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(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any
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action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show, if any. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a Permitted Free Writing Prospectus. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all
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amendments or supplements to any of them, as may, in each case, be reasonably requested by the Underwriters for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Companys accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters . The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the General Counsel to the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Annex A.
(c) The Company shall have requested and caused Weil, Gotshal & Manges LLP to have furnished to the Representatives their opinion and letter, each dated the Closing Date and addressed to the Representatives, in substantially the forms attached hereto as Annexes B-1 and B-2, respectively.
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(d) The Representatives shall have received from Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) the Company is a well-known seasoned issuer within the meaning of Rule 405 under the Act and meets the requirements for use of Form S-3 under the Act to register primary offerings of securities;
(iii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Companys knowledge, threatened; and
(iv) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) On the date hereof, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(g) On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public or certified public accountants for the
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Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (f) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) or (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Companys debt securities by any nationally recognized statistical rating organization (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company promptly in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Cleary Gottlieb Steen & Hamilton LLP , counsel for the Underwriters, at One Liberty Plaza, New York, NY 10006, on the Closing Date.
7. Reimbursement of Underwriters Expenses . If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the
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Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through Merrill Lynch, Pierce, Fenner & Smith Incorporated on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution . (a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, as such term is defined in Rule 501(b) under the Act, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, (ii) under the heading Underwriting, (A) the first paragraph, (B) the list of Underwriters and their respective participation in the sale of the Securities, (C) the fourth
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paragraph related to concessions and reallowances, (D) the sixth and seventh paragraphs related to stabilization and syndicate covering transactions and (E) the third sentence of the eleventh paragraph related to allocation of the Securities in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying partys choice at the indemnifying partys expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying partys election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
16
incurred in connection with investigating or defending the same) (collectively Losses) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided , however , that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter . If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided , however , that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
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aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination . This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Companys Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal, New York State or California authorities, (iii) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive . The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices . All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Merrill Lynch, Pierce, Fenner & Smith Incorporated, attention Capital Markets Transaction Management/Legal, 50 Rockefeller Plaza, NY1-50-12-01, New York, NY 10020 (fax no.: (212) 901-7881), and to Morgan Stanley & Co. LLC, attention Investment Banking Division; (fax no.: (212) 507-8999), at 1585 Broadway, 29 th Floor New York, NY 10036 or, if sent to the Company, will be mailed, delivered or telefaxed to the Franklin Resources, Inc. General Counsel (fax no.: (650) 312-3266) and confirmed to the General Counsel, Franklin Resources, Inc. at One Franklin Parkway, San Mateo, CA, 94403.
13. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees,
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agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. No Fiduciary Duty . The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Companys engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
15. Integration . This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
16. Applicable Law . This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17. Waiver of Jury Trial . The parties 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.
18. Counterparts . This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
19. Headings . The section headings used herein are for convenience only and shall not affect the construction hereof.
20. Definitions . The terms that follow, when used in this Agreement, shall have the meanings indicated.
Act shall mean the Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.
Base Prospectus shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
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Commission shall mean the Securities and Exchange Commission.
Disclosure Package shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
Effective Date shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
Execution Time shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
Final Prospectus shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
Free Writing Prospectus shall mean a free writing prospectus, as defined in Rule 405.
Issuer Free Writing Prospectus shall mean an issuer free writing prospectus, as defined in Rule 433.
Preliminary Prospectus shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
Registration Statement shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
Rule 158, Rule 163, Rule 164, Rule 172, Rule 405, Rule 415, Rule 424, Rule 430B and Rule 433 refer to such rules under the Act.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.
Well-Known Seasoned Issuer shall mean a well-known seasoned issuer, as defined in Rule 405.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
Very truly yours, |
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Franklin Resources, Inc. |
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By: |
/s/ Kenneth A. Lewis |
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Name: | Kenneth A. Lewis | |||
Title: | Chief Financial Officer |
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: Merrill Lynch, Pierce, Fenner & Smith |
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Incorporated |
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By: |
/s/ Matt Basler |
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Name: |
Matthew Basler | |||
Title: |
Managing Director | |||
By: Morgan Stanley & Co. LLC |
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By: |
/s/ Yurij Slyz |
|||
Name: |
Yurij Slyz | |||
Title: |
Executive Director |
For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement.
22
SCHEDULE I
Underwriting Agreement dated September 19, 2012.
Registration Statement No. 333-183969
Representatives: Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC
Title, Purchase Price and Description of Securities:
Title: 1.375% Notes due 2017
Principal amount: $300,000,000
Purchase price (include accrued interest or amortization, if any): 98.855%
Sinking fund provisions: None
Closing Date, Time and Location: September 24, 2012 at 10:00 a.m. at Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, at One Liberty Plaza, New York, New York 10006.
Type of Offering: Non-delayed
Modification of items to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 6(f) or 6(g) at the Execution Time: None
SCHEDULE II
Underwriters |
Principal Amount
of
Securities to be Purchased |
|||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 112,500,000 | ||
Morgan Stanley & Co. LLC |
112,500,000 | |||
Citigroup Global Markets Inc. |
15,000,000 | |||
HSBC Securities (USA) Inc. |
15,000,000 | |||
J.P. Morgan Securities LLC |
15,000,000 | |||
UBS Securities LLC |
15,000,000 | |||
Wells Fargo Securities, LLC |
15,000,000 | |||
|
|
|||
Total |
$ | 300,000,000 | ||
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
1. Final term sheet as prepared pursuant to Section 5(b) hereto and filed as an Issuer Free Writing Prospectus by the Company with the Commission on September 19, 2012.
SCHEDULE IV
US$300,000,000 1.375% Five-Year Notes
Issuer: |
Franklin Resources, Inc. | |
Type: |
SEC Registered | |
Ratings: |
[Reserved] | |
Trade Date: |
September 19, 2012 | |
Settlement Date: |
September 24, 2012 (T+3 days) | |
Securities: |
1.375% Notes due 2017 | |
Size: |
US $300,000,000 | |
Maturity Date: |
September 15, 2017 | |
Semi-Annual Coupon: |
1.375% | |
Interest Payment Dates: |
March 15 and September 15, commencing March 15, 2013 | |
Price to Public: |
99.455% | |
Benchmark Treasury: |
0.625% due August 31, 2017 | |
Benchmark Treasury Price & Yield: |
99-22 / 0.689% | |
Spread to Benchmark Treasury: |
+ 80 bps | |
Yield: |
1.489% | |
Make-Whole Call: |
T + 12.5 bps | |
Day Count: |
30/360 | |
Minimum Denomination / Multiples: |
$2,000 / $1,000 | |
CUSIP: |
354613AH4 | |
ISIN: |
US354613AH43 | |
Joint Book-Running Managers: |
Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC |
|
Co-Managers: |
Citigroup Global Markets Inc. HSBC Securities (USA) Inc. J.P. Morgan Securities LLC UBS Securities LLC Wells Fargo Securities, LLC |
This communication is intended for the sole use of the person to whom it is provided by the issuer.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revisions or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov . Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-800-294-1322 or Morgan Stanley & Co. LLC at 1-866-718-1649.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER E-MAIL SYSTEM.
Annex A
Form of Opinion of General Counsel of the Company
The Representatives named in
Schedule I of each of the Underwriting
Agreements, as representatives of the several
Underwriters named in Schedule II thereto
Ladies and Gentlemen:
I am General Counsel of Franklin Resources, Inc., a Delaware corporation (the Company ). This opinion letter is being issued in connection with the preparation, execution and delivery of, and the consummation of the transactions contemplated by, (i) the Underwriting Agreement dated as of September 19, 2012 (the 2017 Notes Underwriting Agreement ), among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives (the Representatives ) of the several underwriters named therein (the Underwriters ), relating to the issuance and sale by the Company of $300,000,000 aggregate principal amount of its 1.375% Notes due 2017 (the 2017 Notes ) and (ii) the Underwriting Agreement dated as of September 19, 2012 (together with the 2017 Notes Underwriting Agreement, the Underwriting Agreements ), among the Company and the Representatives relating to the issuance and sale by the Company of $300,000,000 aggregate principal amount of its 2.800% Notes due 2022 (together with the 2017 Notes, the Notes ). Capitalized terms defined in the Underwriting Agreement and used but not otherwise defined herein are used herein as so defined.
In connection with this opinion, I have examined, to the extent necessary, originals or copies (certified or otherwise identified to my satisfaction) of (i) the Underwriting Agreements, (ii) the Companys automatic shelf registration statement on Form S-3 (File No. 333-183969) filed on September 19, 2012, including the documents incorporated by reference therein (the Registration Statement ), (iii) the Prospectus, dated as of September 19, 2012, which forms a part of the Registration Statement, (iv) the Preliminary Prospectus Supplement, dated as of September 19, 2012, including the documents incorporated by reference therein, (v) the Disclosure Package, (vi) the Prospectus Supplement, dated as of September 19, 2012, including the documents incorporated by reference therein (the Prospectus Supplement ), (vii) the Indenture dated as of May 19, 1994, as supplemented by a first supplemental indenture dated as of October 9, 1996 and a third supplemental indenture dated as of September 24, 2012, in each case, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to Chemical Bank, as trustee (viii) executed copies of the global certificates representing the Notes and (ix) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as I have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties of the Company contained in the Underwriting Agreements. As used herein, to my knowledge means the conscious awareness of facts or other information by me or other lawyers in the Companys legal department responsible for the matters described herein.
Based on the foregoing, and subject to the qualifications stated herein, I am of the opinion that:
1. Each of Templeton Worldwide, Inc., a Delaware corporation; Templeton International, Inc., a Delaware corporation; Franklin Mutual Advisers, LLC, a New Jersey limited liability company; and Franklin/Templeton Distributors, Inc., a New York corporation (each, a Significant Subsidiary ), is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation.
2. All of the outstanding shares of capital stock or membership units, as applicable, of each Significant Subsidiary are owned, directly or indirectly, of record by the Company. To my knowledge, such shares or membership units, as applicable, are also owned beneficially by the Company and are free and clear of all adverse claims, limitations on voting rights, options and other encumbrances, are duly authorized, validly issued, fully paid and non-assessable.
3. The Company has been duly qualified as a foreign corporation for the transaction of business in, and is in good standing under the laws of, each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure of the Company to be so qualified and be in good standing would not reasonably be expected to have a Material Adverse Effect.
4. Other than as set forth in the Disclosure Package and the Prospectus Supplement, 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, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect and, to my knowledge, no such proceedings are threatened by governmental authorities or by others.
I am a member of the bar of the State of New York and the District of Columbia. The opinions expressed herein are rendered solely for the benefit of the Underwriters in connection with the transactions described herein. Those opinions may not be used or relied upon by any other person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without my prior written consent.
Annex B-1
Form of Opinion of Weil, Gotshal & Manges LLP
The Representatives named in
Schedule I of each of the Underwriting
Agreements, as representatives of
the several Underwriters named in
Schedule II thereto
Ladies and Gentlemen:
We have acted as counsel to Franklin Resources, Inc., a Delaware corporation (the Company ), in connection with the preparation, execution and delivery of, and the consummation of the transactions contemplated by, (i) the Underwriting Agreement, dated September 19, 2012 (the 2017 Notes Underwriting Agreement ), among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives the ( Representatives ) of the several underwriters named therein (the Underwriters ) relating to the issuance and sale by the Company of its 1.375% Notes due 2017 (the 2017 Notes ) and (ii) the Underwriting Agreement, dated September 19, 2012, among the Company and the Representatives (together with the 2017 Notes Underwriting Agreement, the Underwriting Agreements ) relating to the issuance and sale by the Company of its 2.800% Notes due 2022 (together with the 2017 Notes, the Notes ).
The Notes are being issued by the Company under the Indenture, dated as of May 19, 1994, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to Chemical Bank, as Trustee (the Trustee ), as supplemented by a first supplemental indenture thereto, dated as of October 9, 1996, and a third supplemental indenture thereto, dated as of September 24, 2012 (the Indenture ). This opinion is being furnished pursuant to paragraph 6(c) of each of the Underwriting Agreements. The capitalized terms defined in the Underwriting Agreements and used (but not otherwise defined) herein are used as so defined.
In so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Certificate of Incorporation of the Company, as amended, (ii) the Amended and Restated By-Laws of the Company, (iii) the Underwriting Agreements, (iv) the Companys automatic shelf registration statement on Form S-3 (File No. 333-183969) filed with the Securities and Exchange Commission (the Commission ) on September 19, 2012, including the documents incorporated by reference therein (the Registration Statement ), (v) the Prospectus, dated September 19, 2012 (the Base Prospectus ), which forms a part of the Registration Statement, (vi) the Preliminary Prospectus Supplement, dated September 19, 2012, including the documents incorporated by reference therein, (vii) the Disclosure Package, (viii) the Prospectus Supplement, dated September 19, 2012 , including the documents incorporated by reference therein (together with the Base Prospectus, the Prospectus ), (ix) the Indenture, (x) executed copies of global certificates representing the Notes and (xi) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties of the Company contained in the Underwriting Agreements. As used herein, to our knowledge and of which we are aware mean the conscious awareness of facts or other information by any lawyer in our firm actively involved in the transactions contemplated by the Underwriting Agreements, after consultation with such other lawyers in our firm, as each such actively involved lawyer has deemed appropriate.
Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as described in the Disclosure Package and the Prospectus.
2. Franklin Advisers, Inc. is a corporation validly existing and in good standing under the laws of the State of California.
3. All of the outstanding shares of capital stock of Franklin Advisers, Inc. are owned of record by the Company. To our knowledge, such shares are also owned beneficially by the Company and are free and clear of all adverse claims, limitations on voting rights, options and other encumbrances, and are duly authorized, validly issued, fully paid and non-assessable.
4. The execution, delivery and performance of the Indenture by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Indenture has been duly and validly executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Trustee) constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). The Indenture has been duly qualified under the Trust Indenture Act.
5. The execution, delivery and performance of the Notes by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Notes have been duly executed and delivered by the Company and, when paid for by the Underwriters in accordance with the terms of the Underwriting Agreements (assuming the due authentication and delivery thereof by the Trustee), will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies
generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
6. The Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act of 1933, as amended, has been made in the manner and within the time period required by such Rule. Based solely on a telephone confirmation by the Staff of the Commission, we are not aware of any stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use. To our knowledge, no proceedings therefor have been instituted or overtly threatened by the Commission.
7. The execution, delivery and performance of the Underwriting Agreements by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Underwriting Agreements have been duly and validly executed and delivered by the Company.
8. The execution and delivery by the Company of the Underwriting Agreements and the Indenture and the performance by the Company of its obligations thereunder, including the issuance and sale of the Notes, will not conflict with, constitute a default under or violate (i) any of the terms, conditions or provisions of the Certificate of Incorporation of the Company, as amended, or the Amended and Restated By-Laws of the Company, (ii) New York, Delaware corporate or federal law or regulation (other than federal and state securities or blue sky laws, as to which we express no opinion in this paragraph) or (iii) any judgment, writ, injunction, decree, order or ruling of any court or governmental authority binding on the Company or any of its Significant Subsidiaries of which we are aware.
9. No consent, approval, waiver, license or authorization or other action by or filing with any New York, Delaware corporate or federal governmental authority is required in connection with the execution and delivery by the Company of the Underwriting Agreements, the consummation by the Company of the transactions contemplated thereby or the performance by the Company of its obligations thereunder, except for filings and other actions required pursuant to federal and state securities or blue sky laws, as to which we express no opinion in this paragraph.
10. The Company is not, and immediately after giving effect to the issuance and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be, required to register as an investment company, under the Investment Company Act of 1940, as amended, and the Company is not required to register as an investment adviser with the Commission under the Investment Advisers Act of 1940, as amended.
11. The statements made in the Disclosure Package and Prospectus under the caption Certain Material U.S. Federal Income Tax Consequences to Non-U.S. Holders, insofar as they constitute statements of United States federal income tax law or legal conclusions with respect thereto, and subject to the limitations set forth therein, fairly summarize the matters referred to therein in all material respects.
12. The statements in the Disclosure Package and Prospectus under the caption Certain ERISA Considerations, insofar as such statements purport to describe provisions of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of U.S. federal tax law and regulations thereunder, and subject to the limitation set forth therein, fairly describe the provisions to the extent referred to therein in all material respects.
13. The statements made in the Disclosure Package and Prospectus under the captions Description of Debt Securities, Plan of Distribution and Description of the Notes, insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein in all material respects.
The opinions expressed herein are limited to the laws of the State of New York, the corporate laws of the State of Delaware and the State of California and the federal laws of the United States, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for the benefit of the Underwriters in connection with the transactions described herein. Those opinions may not be used or relied upon by any other person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without our prior written consent.
Annex B-2
Form of Negative Assurance Letter of Weil, Gotshal & Manges LLP
To the Representatives
named in Schedule I to each
of the Agreements, as representatives
of the several Underwriters named
in Schedule II to thereto
Ladies and Gentlemen:
(a) Reference is made to (i) the Registration Statement on Form S-3 (Registration No. 333-183969), filed by Franklin Resources, Inc. (the Company ) on September 19, 2012 (the Registration Statement ), (ii) the prospectus, dated as of September 19, 2012 (the Base Prospectus ), which forms a part of the Registration Statement, (iii) the preliminary prospectus supplement, dated September 19, 2012 (the Preliminary Prospectus Supplement ) and (iv) the prospectus supplement, dated September 19, 2012 (the Prospectus Supplement ), in each case relating to the 1.375% Notes due 2017 (the 2017 Notes ) and the 2.800% Notes due 2022 (the 2022 Notes and together with the 2017 Notes, the Securities ) of the Company, as to which we have acted as counsel to the Company. We refer to the Base Prospectus, as supplemented by the Preliminary Prospectus Supplement, and taken together with the documents listed on Schedule A hereto, as the Pricing Disclosure Package . We refer to the Base Prospectus as supplemented by the Prospectus Supplement as the Prospectus . We refer to the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement and the documents listed on Schedule A hereto and the Prospectus Supplement as the Offering Documents . This letter is furnished to you pursuant to Section 6(c) of each of (1) the Underwriting Agreement, dated as of September 19, 2012, among the Company and the underwriters named therein, relating to the issuance and sale by the Company of the 2017 Notes, and (2) the Underwriting Agreement, dated as of September 19, 2012, among the Company and the underwriters named therein, relating to the issuance and sale by the Company of the 2022 Notes (collectively, the Agreements ). Capitalized terms defined in the Agreements and used (but not otherwise defined) herein are used herein as so defined.
(b) The primary purpose of our professional engagement was not to establish or confirm factual matters or financial or quantitative information, and many determinations involved in the preparation of the Offering Documents are of a non-legal character. In addition, we have not undertaken any obligation to verify independently any of the factual matters set forth in the Offering Documents or in the documents incorporated by reference therein (the Incorporated Documents ). Consequently, in this letter we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Offering Documents. Also, we do not make any statement herein with respect to any of the financial statements and related notes thereto, the financial statement schedules or the financial or accounting data contained or incorporated by reference in the Offering Documents or Exhibit 25.1 to the Registration Statement.
(c) We have reviewed the Offering Documents (including the Incorporated Documents) and we have participated in conferences with representatives of the Company, its independent public accountants, you and your counsel, at which conferences the contents of the Offering Documents, the Incorporated Documents and related matters were discussed. However, we did not participate in the preparation of the Incorporated Documents.
(d) Subject to the foregoing, we confirm to you that, on the basis of the information we gained in the course of performing the services referred to above, (a) the Registration Statement (including the Incorporated Documents), as of its most recent effective date, and the Prospectus (including the Incorporated Documents), as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities, to the applicable requirements of the Securities Act and the rules and regulations thereunder, and (b) no facts have come to our attention which cause us to believe that (i) the Registration Statement (including the Incorporated Documents), as of its most recent effective date, 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 contained therein not misleading, (ii) the Pricing Disclosure Package (including the Incorporated Documents), as of 3:45 PM on September 19, 2012, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (including the Incorporated Documents), as of the date of the Prospectus Supplement or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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.
(e) The statements made herein are set forth solely for the benefit of the Underwriters and are addressed to you solely in your capacity as the underwriters of the Securities. Neither this letter nor any of such statements may be used or relied upon by, or assigned to, any other person (including any subsequent purchaser or transferee of the Securities), and neither this letter nor any copies hereof may be furnished to any other person, filed with a governmental agency, quoted, cited or otherwise referred to without our prior written consent.
SCHEDULE A
1. | Issuer free writing prospectus filed by the Company with the Commission on September 19, 2012. |
Exhibit 1.2
EXECUTION VERSION
Franklin Resources, Inc.
2.800% Notes Due 2022
Underwriting Agreement
New York, New York
September 19, 2012
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Franklin Resources, Inc., a corporation organized under the laws of Delaware (the Company), proposes to sell to the several underwriters named in Schedule II hereto (the Underwriters), for whom you (the Representatives) are acting as representatives, the principal amount of its securities identified in Schedule I hereto (the Securities), to be issued under an indenture dated as of May 19, 1994, between the Company and The Bank of New York Trust Company, N.A. as successor to Chemical Bank, as trustee (the Trustee), as supplemented by a first supplemental indenture dated October 9, 1996 and a third supplemental indenture to be dated as of September 24, 2012 (such indenture, as supplemented, the Indenture). To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representatives as used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms amend, amendment or supplement with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties . The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405, (the file number of which is set forth in Schedule I hereto) on Form S-3, including a related Base Prospectus, for registration under the Act
of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Company may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus (or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show, if any, when taken together as a whole with the Disclosure Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished
2
to the Company by or on behalf of any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being used as the determination date for purposes of this clause (iv)), the Company was or is (as the case may be) a well-known seasoned issuer as defined in Rule 405. The Company shall pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 5(b) hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein by reference and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(g) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus, and is duly qualified to do business as a foreign corporation and has been 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, except where the failure to so qualify and be in good standing would not have, individually or in the aggregate, a material adverse effect on the financial condition or earnings, business affairs or business prospects of the Company
3
and its subsidiaries considered as one enterprise (a Material Adverse Effect); and each subsidiary of the Company which is a significant subsidiary within the meaning of Regulation S-X promulgated under the Act (each, a Significant Subsidiary) has been duly incorporated and is validly existing as a corporation or a limited liability company in good standing under the laws of its jurisdiction of organization, to the extent applicable in such jurisdiction, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect.
(h) The Company has an authorized capitalization as set forth in the Preliminary Prospectus and the Final Prospectus under Actual in the section entitled Capitalization, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; and all of the issued shares of capital stock of each Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable; all shares of capital stock of each subsidiary of the Company (except for directors qualifying shares) owned directly or indirectly by the Company, are owned free and clear of all liens, encumbrances, equities or claims.
(i) There is no franchise, contract or other document of a character required to be described in the Registration Statement, the Preliminary Prospectus or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in the Preliminary Prospectus and the Final Prospectus under the headings Description of the Notes, Description of Debt Securities, Plan of Distribution, Certain Material U.S. Federal Income Tax Consequences to Non-U.S. Holders and Certain ERISA Considerations insofar as such statements summarize legal matters, agreements and documents of the Company, legal proceedings or legal conclusions, fairly summarize, in all material respects, the matters referred to therein.
(j) This Agreement has been duly authorized, executed and delivered by the Company.
(k) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained or made under the Act and the Trust Indenture Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Final Prospectus.
(l) Neither the issue and sale of the Securities nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws or similar organizational documents of the Company or any of its Significant Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its
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subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Significant Subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their properties, which in the case of clauses (ii) and (iii) could reasonably be expected to have a Material Adverse Effect.
(m) The consolidated historical financial statements and schedules of the Company and its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and the Registration Statement present fairly, in all material respects, the financial condition, results of operations and cash flows of the Company as of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of the Act and have been prepared in conformity with U.S. generally accepted accounting principles (GAAP) applied on a consistent basis throughout the periods involved (except as otherwise noted therein). The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commissions rules and guidelines applicable thereto.
(n) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property is pending or, to the best knowledge of the Company, threatened that (i) could reasonably be expected to have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus.
(o) The Company and its Significant Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Disclosure Package and the Final Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Significant Subsidiaries; and any real property and buildings held under lease by the Company and its Significant Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Significant Subsidiaries.
(p) Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its Certificate of Incorporation or by-laws, (ii) in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree applicable
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to the Company or any Significant Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any Significant Subsidiary or any of its or their properties, which violation or default referred to in clauses (ii) or (iii) above would have a Material Adverse Effect.
(q) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its consolidated subsidiaries and delivered their report with respect to the audited consolidated financial statements and schedules included in the Disclosure Package and the Final Prospectus, is an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable published rules and regulations thereunder.
(r) No Significant Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiarys capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiarys property or assets to the Company or any other subsidiary of the Company, except as described in or contemplated by the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(s) The Company and each of its consolidated Significant Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Final Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto. The Company and its subsidiaries internal controls over financial reporting are effective and the Company and its subsidiaries are not aware of any material weakness in their internal controls over financial reporting.
(t) The Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(u) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended,
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and the rules and regulations thereunder (the FCPA), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(v) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, in all material respects, and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws); and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(w) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, controlled affiliate or representative of the Company or any of its subsidiaries is an individual or entity (Person) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasurys Office of Foreign Assets Control (OFAC), the United Nations Security Council (UNSC), the European Union, Her Majestys Treasury (HMT), or other relevant sanctions authority (collectively, Sanctions), nor is the Company located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(x) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an investment company, as such term is defined in the Investment Company Act of 1940, as amended (the Investment Company Act); the Company is not required to register as an investment adviser with the Commission under the Investment Advisers Act of 1940, as amended (the Investment Advisers Act) and is not required to register as a broker-dealer with the Commission under the Exchange Act; and the Company is not required to be registered, licensed or qualified as a commodity trading advisor, a commodity pool operator or a futures commission merchant.
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(y) Each subsidiary of the Company required to be registered under the Investment Advisers Act is duly registered as an investment adviser with the Commission under the Investment Advisers Act, and in each jurisdiction where the conduct of its business requires regulatory authorization or license as an investment adviser, and such subsidiary is not prohibited from acting as an investment adviser or carrying on its business as now conducted or as contemplated in the Registration Statement by any applicable laws, rules, regulations, orders, by-laws or similar requirements, except as would not have a Material Adverse Effect.
(z) Each investment company or account for which the Company or any of its subsidiaries acts as investment adviser and which is required to be registered with the Commission as an investment company under the Investment Company Act is duly registered with the Commission as an investment company under the Investment Company Act, except as would not have a Material Adverse Effect.
(aa) Each subsidiary of the Company required to be registered as a broker-dealer with the Commission under the Exchange Act is duly registered as a broker-dealer with the Commission under the Exchange Act, and such subsidiary is not prohibited from acting as broker-dealer or carrying on its business as now conducted or as contemplated in the Registration Statement by any applicable laws, rules, regulations, orders, by-laws or similar requirements, except as would not have a Material Adverse Effect.
(bb) Each subsidiary of the Company required to be registered, licensed or qualified as a commodity trading advisor, a commodity pool operator or a futures commission merchant is duly registered, licensed or qualified in each jurisdiction where the conduct of its business requires such a registration, license or qualification, and such subsidiary is not prohibited from acting as a commodity trading advisor, a commodity pool operator or a futures commission merchant or carrying on its business as now conducted or as contemplated in the Registration Statement by any applicable laws, rules, regulations, orders, by-laws or similar requirements, except as would not have a Material Adverse Effect.
Any certificate signed by any authorized officer of the Company and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale . Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriters name in Schedule II hereto.
3. Delivery and Payment . Delivery of and payment for the Securities shall be made on the date and at the time specified in Schedule I hereto or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the
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Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the Closing Date). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. Offering by Underwriters . It is understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements . The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any amendment of the Registration Statement, or any Rule 462(b) Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of objection, to obtain as soon as possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and using its best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) To prepare a final term sheet for the Securities, containing solely a description of final terms of the Securities and the offering thereof, in the form approved by you and attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
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(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, the Company will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or omission; and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company promptly will (i) notify the Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such statement or omission or effect such compliance, (iii) use its best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request. The Company will pay the expenses of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate and will maintain such qualifications in effect so long as required for the distribution of the Securities; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any
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action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company that, unless it has or shall have obtained, as the case may be, the prior written consent of the Company, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus (as defined in Rule 405) required to be filed by the Company with the Commission or retained by the Company under Rule 433, other than a free writing prospectus containing the information contained in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any electronic road show, if any. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a Permitted Free Writing Prospectus. The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
(i) The Company will not, without the prior written consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company or any affiliate of the Company or any person in privity with the Company or any affiliate of the Company), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act in respect of, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction, until the Closing Date.
(j) The Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and all
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amendments or supplements to any of them, as may, in each case, be reasonably requested by the Underwriters for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities, including any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act; (vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Securities; (ix) the fees and expenses of the Companys accountants and the fees and expenses of counsel (including local and special counsel) for the Company; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters . The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the General Counsel to the Company to have furnished to the Representatives his opinion, dated the Closing Date and addressed to the Representatives, in substantially the form attached hereto as Annex A.
(c) The Company shall have requested and caused Weil, Gotshal & Manges LLP to have furnished to the Representatives their opinion and letter, each dated the Closing Date and addressed to the Representatives, in substantially the forms attached hereto as Annexes B-1 and B-2, respectively.
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(d) The Representatives shall have received from Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show, if any, used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) the Company is a well-known seasoned issuer within the meaning of Rule 405 under the Act and meets the requirements for use of Form S-3 under the Act to register primary offerings of securities;
(iii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Companys knowledge, threatened; and
(iv) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) On the date hereof, the Representatives shall have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
(g) On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent public or certified public accountants for the
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Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (f) of this Section 6, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) or (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Companys debt securities by any nationally recognized statistical rating organization (as defined for purposes of Section 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company promptly in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of Cleary Gottlieb Steen & Hamilton LLP , counsel for the Underwriters, at One Liberty Plaza, New York, NY 10006, on the Closing Date.
7. Reimbursement of Underwriters Expenses . If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the
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Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally through Morgan Stanley & Co. LLC on demand for all expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution . (a) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, as such term is defined in Rule 501(b) under the Act, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information contained in the final term sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, (ii) under the heading Underwriting, (A) the first paragraph, (B) the list of Underwriters and their respective participation in the sale of the Securities, (C) the fourth
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paragraph related to concessions and reallowances, (D) the sixth and seventh paragraphs related to stabilization and syndicate covering transactions and (E) the third sentence of the eleventh paragraph related to allocation of the Securities in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying partys choice at the indemnifying partys expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying partys election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
16
incurred in connection with investigating or defending the same) (collectively Losses) to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Securities; provided , however , that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter . If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided , however , that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
17
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination . This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) trading in the Companys Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal, New York State or California authorities, (iii) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11. Representations and Indemnities to Survive . The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors, employees, agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices . All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to Merrill Lynch, Pierce, Fenner & Smith Incorporated, attention Capital Markets Transaction Management/Legal, 50 Rockefeller Plaza, NY1-50-12-01, New York, NY 10020 (fax no.: (212) 901-7881), and to Morgan Stanley & Co. LLC, attention Investment Banking Division; (fax no.: (212) 507-8999), at 1585 Broadway, 29 th Floor New York, NY 10036 or, if sent to the Company, will be mailed, delivered or telefaxed to the Franklin Resources, Inc. General Counsel (fax no.: (650) 312-3266) and confirmed to the General Counsel, Franklin Resources, Inc. at One Franklin Parkway, San Mateo, CA, 94403.
13. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees,
18
agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14. No Fiduciary Duty . The Company hereby acknowledges that (a) the purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial transaction between the Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the Company and (c) the Companys engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent contractors and not in any other capacity. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has advised or is currently advising the Company on related or other matters). The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
15. Integration . This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
16. Applicable Law . This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17. Waiver of Jury Trial . The parties 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.
18. Counterparts . This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
19. Headings . The section headings used herein are for convenience only and shall not affect the construction hereof.
20. Definitions . The terms that follow, when used in this Agreement, shall have the meanings indicated.
Act shall mean the Securities Act of 1933, as amended and the rules and regulations of the Commission promulgated thereunder.
Base Prospectus shall mean the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
19
Commission shall mean the Securities and Exchange Commission.
Disclosure Package shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
Effective Date shall mean each date and time that the Registration Statement and any post-effective amendment or amendments thereto became or becomes effective.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
Execution Time shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
Final Prospectus shall mean the prospectus supplement relating to the Securities that was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
Free Writing Prospectus shall mean a free writing prospectus, as defined in Rule 405.
Issuer Free Writing Prospectus shall mean an issuer free writing prospectus, as defined in Rule 433.
Preliminary Prospectus shall mean any preliminary prospectus supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
Registration Statement shall mean the registration statement referred to in paragraph 1(a) above, including exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
Rule 158, Rule 163, Rule 164, Rule 172, Rule 405, Rule 415, Rule 424, Rule 430B and Rule 433 refer to such rules under the Act.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended and the rules and regulations of the Commission promulgated thereunder.
Well-Known Seasoned Issuer shall mean a well-known seasoned issuer, as defined in Rule 405.
20
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
21
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
Very truly yours, | ||
Franklin Resources, Inc. |
||
By: |
/s/ Kenneth A. Lewis |
|
Name: Kenneth A. Lewis | ||
Title: Chief Financial Officer |
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: |
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
|
By: |
/s/ Matt Basler |
|
Name: Matthew Basler Title: Managing Director |
||
By: | Morgan Stanley & Co. LLC | |
By: |
/s/ Yurij Slyz |
|
Name: Yurij Slyz Title: Executive Director |
For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement.
22
SCHEDULE I
Underwriting Agreement dated September 19, 2012.
Registration Statement No. 333-183969
Representatives: Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC
Title, Purchase Price and Description of Securities:
Title: 2.800% Notes due 2022
Principal amount: $300,000,000
Purchase price (include accrued interest or amortization, if any): 99.100%
Sinking fund provisions: None
Closing Date, Time and Location: September 24, 2012 at 10:00 a.m. at Cleary Gottlieb Steen & Hamilton LLP, counsel for the Underwriters, at One Liberty Plaza, New York, New York 10006.
Type of Offering: Non-delayed
Modification of items to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 6(f) or 6(g) at the Execution Time: None
SCHEDULE II
Underwriters |
Principal Amount of
Securities to be Purchased |
|||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 112,500,000 | ||
Morgan Stanley & Co. LLC |
112,500,000 | |||
Citigroup Global Markets Inc. |
15,000,000 | |||
HSBC Securities (USA) Inc. |
15,000,000 | |||
J.P. Morgan Securities LLC |
15,000,000 | |||
UBS Securities LLC |
15,000,000 | |||
Wells Fargo Securities, LLC |
15,000,000 | |||
|
|
|||
Total |
$ | 300,000,000 | ||
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
1. Final term sheet as prepared pursuant to Section 5(b) hereto and filed as an Issuer Free Writing Prospectus by the Company with the Commission on September 19, 2012.
SCHEDULE IV
US$300,000,000 2.800% Ten-Year Notes
Issuer: |
Franklin Resources, Inc. | |
Type: |
SEC Registered | |
Ratings: |
[Reserved] | |
Trade Date: |
September 19, 2012 | |
Settlement Date: |
September 24, 2012 (T+3 days) | |
Securities: |
2.800% Notes due 2022 | |
Size: |
US $300,000,000 | |
Maturity Date: |
September 15, 2022 | |
Semi-Annual Coupon: |
2.800% | |
Interest Payment Dates: |
March 15 and September 15, commencing March 15, 2013 | |
Price to Public: |
99.750% | |
Benchmark Treasury: |
1.625% due August 15, 2022 | |
Benchmark Treasury Price & Yield: |
98-19+ / 1.779% | |
Spread to Benchmark Treasury: |
+ 105 bps | |
Yield: |
2.829% | |
Make-Whole Call: |
T + 20 bps | |
Day Count: |
30/360 | |
Minimum Denomination / Multiples: |
$2,000 / $1,000 | |
CUSIP: |
354613AJ0 | |
ISIN: |
US354613AJ09 | |
Joint Book-Running Managers: |
Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. LLC |
|
Co-Managers: |
Citigroup Global Markets Inc. HSBC Securities (USA) Inc. J.P. Morgan Securities LLC UBS Securities LLC Wells Fargo Securities, LLC |
This communication is intended for the sole use of the person to whom it is provided by the issuer.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revisions or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov . Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-800-294-1322 or Morgan Stanley & Co. LLC at 1-866-718-1649.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER E-MAIL SYSTEM.
Annex A
Form of Opinion of General Counsel of the Company
The Representatives named in
Schedule I of each of the Underwriting
Agreements, as representatives of the several
Underwriters named in Schedule II thereto
Ladies and Gentlemen:
I am General Counsel of Franklin Resources, Inc., a Delaware corporation (the Company ). This opinion letter is being issued in connection with the preparation, execution and delivery of, and the consummation of the transactions contemplated by, (i) the Underwriting Agreement dated as of September 19, 2012 (the 2017 Notes Underwriting Agreement ), among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives (the Representatives ) of the several underwriters named therein (the Underwriters ), relating to the issuance and sale by the Company of $300,000,000 aggregate principal amount of its 1.375% Notes due 2017 (the 2017 Notes ) and (ii) the Underwriting Agreement dated as of September 19, 2012 (together with the 2017 Notes Underwriting Agreement, the Underwriting Agreements ), among the Company and the Representatives relating to the issuance and sale by the Company of $300,000,000 aggregate principal amount of its 2.800% Notes due 2022 (together with the 2017 Notes, the Notes ). Capitalized terms defined in the Underwriting Agreement and used but not otherwise defined herein are used herein as so defined.
In connection with this opinion, I have examined, to the extent necessary, originals or copies (certified or otherwise identified to my satisfaction) of (i) the Underwriting Agreements, (ii) the Companys automatic shelf registration statement on Form S-3 (File No. 333-183969) filed on September 19, 2012, including the documents incorporated by reference therein (the Registration Statement ), (iii) the Prospectus, dated as of September 19, 2012, which forms a part of the Registration Statement, (iv) the Preliminary Prospectus Supplement, dated as of September 19, 2012, including the documents incorporated by reference therein, (v) the Disclosure Package, (vi) the Prospectus Supplement, dated as of September 19, 2012, including the documents incorporated by reference therein (the Prospectus Supplement ), (vii) the Indenture dated as of May 19, 1994, as supplemented by a first supplemental indenture dated as of October 9, 1996 and a third supplemental indenture dated as of September 24, 2012, in each case, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to Chemical Bank, as trustee (viii) executed copies of the global certificates representing the Notes and (ix) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as I have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, I have relied upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties of the Company contained in the Underwriting Agreements. As used herein, to my knowledge means the conscious awareness of facts or other information by me or other lawyers in the Companys legal department responsible for the matters described herein.
Based on the foregoing, and subject to the qualifications stated herein, I am of the opinion that:
1. Each of Templeton Worldwide, Inc., a Delaware corporation; Templeton International, Inc., a Delaware corporation; Franklin Mutual Advisers, LLC, a New Jersey limited liability company; and Franklin/Templeton Distributors, Inc., a New York corporation (each, a Significant Subsidiary ), is validly existing as a corporation or limited liability company in good standing under the laws of its jurisdiction of incorporation.
2. All of the outstanding shares of capital stock or membership units, as applicable, of each Significant Subsidiary are owned, directly or indirectly, of record by the Company. To my knowledge, such shares or membership units, as applicable, are also owned beneficially by the Company and are free and clear of all adverse claims, limitations on voting rights, options and other encumbrances, are duly authorized, validly issued, fully paid and non-assessable.
3. The Company has been duly qualified as a foreign corporation for the transaction of business in, and is in good standing under the laws of, each jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where the failure of the Company to be so qualified and be in good standing would not reasonably be expected to have a Material Adverse Effect.
4. Other than as set forth in the Disclosure Package and the Prospectus Supplement, 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, if determined adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have a Material Adverse Effect and, to my knowledge, no such proceedings are threatened by governmental authorities or by others.
I am a member of the bar of the State of New York and the District of Columbia. The opinions expressed herein are rendered solely for the benefit of the Underwriters in connection with the transactions described herein. Those opinions may not be used or relied upon by any other person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without my prior written consent.
Annex B-1
Form of Opinion of Weil, Gotshal & Manges LLP
The Representatives named in
Schedule I of each of the Underwriting
Agreements, as representatives of
the several Underwriters named in
Schedule II thereto
Ladies and Gentlemen:
We have acted as counsel to Franklin Resources, Inc., a Delaware corporation (the Company ), in connection with the preparation, execution and delivery of, and the consummation of the transactions contemplated by, (i) the Underwriting Agreement, dated September 19, 2012 (the 2017 Notes Underwriting Agreement ), among the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives the ( Representatives ) of the several underwriters named therein (the Underwriters ) relating to the issuance and sale by the Company of its 1.375% Notes due 2017 (the 2017 Notes ) and (ii) the Underwriting Agreement, dated September 19, 2012, among the Company and the Representatives (together with the 2017 Notes Underwriting Agreement, the Underwriting Agreements ) relating to the issuance and sale by the Company of its 2.800% Notes due 2022 (together with the 2017 Notes, the Notes ).
The Notes are being issued by the Company under the Indenture, dated as of May 19, 1994, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to Chemical Bank, as Trustee (the Trustee ), as supplemented by a first supplemental indenture thereto, dated as of October 9, 1996, and a third supplemental indenture thereto, dated as of September 24, 2012 (the Indenture ). This opinion is being furnished pursuant to paragraph 6(c) of each of the Underwriting Agreements. The capitalized terms defined in the Underwriting Agreements and used (but not otherwise defined) herein are used as so defined.
In so acting, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Certificate of Incorporation of the Company, as amended, (ii) the Amended and Restated By-Laws of the Company, (iii) the Underwriting Agreements, (iv) the Companys automatic shelf registration statement on Form S-3 (File No. 333-183969) filed with the Securities and Exchange Commission (the Commission ) on September 19, 2012, including the documents incorporated by reference therein (the Registration Statement ), (v) the Prospectus, dated September 19, 2012 (the Base Prospectus ), which forms a part of the Registration Statement, (vi) the Preliminary Prospectus Supplement, dated September 19, 2012, including the documents incorporated by reference therein, (vii) the Disclosure Package, (viii) the Prospectus Supplement, dated September 19, 2012 , including the documents incorporated by reference therein (together with the Base Prospectus, the Prospectus ), (ix) the Indenture, (x) executed copies of global certificates representing the Notes and (xi) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to these opinions that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties of the Company contained in the Underwriting Agreements. As used herein, to our knowledge and of which we are aware mean the conscious awareness of facts or other information by any lawyer in our firm actively involved in the transactions contemplated by the Underwriting Agreements, after consultation with such other lawyers in our firm, as each such actively involved lawyer has deemed appropriate.
Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as described in the Disclosure Package and the Prospectus.
2. Franklin Advisers, Inc. is a corporation validly existing and in good standing under the laws of the State of California.
3. All of the outstanding shares of capital stock of Franklin Advisers, Inc. are owned of record by the Company. To our knowledge, such shares are also owned beneficially by the Company and are free and clear of all adverse claims, limitations on voting rights, options and other encumbrances, and are duly authorized, validly issued, fully paid and non-assessable.
4. The execution, delivery and performance of the Indenture by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Indenture has been duly and validly executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Trustee) constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). The Indenture has been duly qualified under the Trust Indenture Act.
5. The execution, delivery and performance of the Notes by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Notes have been duly executed and delivered by the Company and, when paid for by the Underwriters in accordance with the terms of the Underwriting Agreements (assuming the due authentication and delivery thereof by the Trustee), will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
6. The Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act of 1933, as amended, has been made in the manner and within the time period required by such Rule. Based solely on a telephone confirmation by the Staff of the Commission, we are not aware of any stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use. To our knowledge, no proceedings therefor have been instituted or overtly threatened by the Commission.
7. The execution, delivery and performance of the Underwriting Agreements by the Company have been duly authorized by all necessary corporate action on the part of the Company. The Underwriting Agreements have been duly and validly executed and delivered by the Company.
8. The execution and delivery by the Company of the Underwriting Agreements and the Indenture and the performance by the Company of its obligations thereunder, including the issuance and sale of the Notes, will not conflict with, constitute a default under or violate (i) any of the terms, conditions or provisions of the Certificate of Incorporation of the Company, as amended, or the Amended and Restated By-Laws of the Company, (ii) New York, Delaware corporate or federal law or regulation (other than federal and state securities or blue sky laws, as to which we express no opinion in this paragraph) or (iii) any judgment, writ, injunction, decree, order or ruling of any court or governmental authority binding on the Company or any of its Significant Subsidiaries of which we are aware.
9. No consent, approval, waiver, license or authorization or other action by or filing with any New York, Delaware corporate or federal governmental authority is required in connection with the execution and delivery by the Company of the Underwriting Agreements, the consummation by the Company of the transactions contemplated thereby or the performance by the Company of its obligations thereunder, except for filings and other actions required pursuant to federal and state securities or blue sky laws, as to which we express no opinion in this paragraph.
10. The Company is not, and immediately after giving effect to the issuance and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be, required to register as an investment company, under the Investment Company Act of 1940, as amended, and the Company is not required to register as an investment adviser with the Commission under the Investment Advisers Act of 1940, as amended.
11. The statements made in the Disclosure Package and Prospectus under the caption Certain Material U.S. Federal Income Tax Consequences to Non-U.S. Holders, insofar as they constitute statements of United States federal income tax law or legal conclusions with respect thereto, and subject to the limitations set forth therein, fairly summarize the matters referred to therein in all material respects.
12. The statements in the Disclosure Package and Prospectus under the caption Certain ERISA Considerations, insofar as such statements purport to describe provisions of the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of U.S. federal tax law
and regulations thereunder, and subject to the limitation set forth therein, fairly describe the provisions to the extent referred to therein in all material respects.
13. The statements made in the Disclosure Package and Prospectus under the captions Description of Debt Securities, Plan of Distribution and Description of the Notes, insofar as such statements constitute summaries of legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein in all material respects.
The opinions expressed herein are limited to the laws of the State of New York, the corporate laws of the State of Delaware and the State of California and the federal laws of the United States, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for the benefit of the Underwriters in connection with the transactions described herein. Those opinions may not be used or relied upon by any other person, nor may this letter or any copies thereof be furnished to a third party, filed with a governmental agency, quoted, cited or otherwise referred to without our prior written consent.
Annex B-2
Form of Negative Assurance Letter of Weil, Gotshal & Manges LLP
To the Representatives
named in Schedule I to each
of the Agreements, as representatives
of the several Underwriters named
in Schedule II to thereto
Ladies and Gentlemen:
(a) Reference is made to (i) the Registration Statement on Form S-3 (Registration No. 333-183969), filed by Franklin Resources, Inc. (the Company ) on September 19, 2012 (the Registration Statement ), (ii) the prospectus, dated as of September 19, 2012 (the Base Prospectus ), which forms a part of the Registration Statement, (iii) the preliminary prospectus supplement, dated September 19, 2012 (the Preliminary Prospectus Supplement ) and (iv) the prospectus supplement, dated September 19, 2012 (the Prospectus Supplement ), in each case relating to the 1.375% Notes due 2017 (the 2017 Notes ) and the 2.800% Notes due 2022 (the 2022 Notes and together with the 2017 Notes, the Securities ) of the Company, as to which we have acted as counsel to the Company. We refer to the Base Prospectus, as supplemented by the Preliminary Prospectus Supplement, and taken together with the documents listed on Schedule A hereto, as the Pricing Disclosure Package . We refer to the Base Prospectus as supplemented by the Prospectus Supplement as the Prospectus . We refer to the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement and the documents listed on Schedule A hereto and the Prospectus Supplement as the Offering Documents . This letter is furnished to you pursuant to Section 6(c) of each of (1) the Underwriting Agreement, dated as of September 19, 2012, among the Company and the underwriters named therein, relating to the issuance and sale by the Company of the 2017 Notes, and (2) the Underwriting Agreement, dated as of September 19, 2012, among the Company and the underwriters named therein, relating to the issuance and sale by the Company of the 2022 Notes (collectively, the Agreements ). Capitalized terms defined in the Agreements and used (but not otherwise defined) herein are used herein as so defined.
(b) The primary purpose of our professional engagement was not to establish or confirm factual matters or financial or quantitative information, and many determinations involved in the preparation of the Offering Documents are of a non-legal character. In addition, we have not undertaken any obligation to verify independently any of the factual matters set forth in the Offering Documents or in the documents incorporated by reference therein (the Incorporated Documents ). Consequently, in this letter we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Offering Documents. Also, we do not make any statement herein with respect to any of the financial statements and related notes thereto, the financial statement schedules or the financial or accounting data contained or incorporated by reference in the Offering Documents or Exhibit 25.1 to the Registration Statement.
(c) We have reviewed the Offering Documents (including the Incorporated Documents) and we have participated in conferences with representatives of the Company, its independent public accountants, you and your counsel, at which conferences the contents of the Offering Documents, the Incorporated Documents and related matters were discussed. However, we did not participate in the preparation of the Incorporated Documents.
(d) Subject to the foregoing, we confirm to you that, on the basis of the information we gained in the course of performing the services referred to above, (a) the Registration Statement (including the Incorporated Documents), as of its most recent effective date, and the Prospectus (including the Incorporated Documents), as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive, in all material respects relevant to the offering of the Securities, to the applicable requirements of the Securities Act and the rules and regulations thereunder, and (b) no facts have come to our attention which cause us to believe that (i) the Registration Statement (including the Incorporated Documents), as of its most recent effective date, 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 contained therein not misleading, (ii) the Pricing Disclosure Package (including the Incorporated Documents), as of 3:45 PM on September 19, 2012, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) the Prospectus (including the Incorporated Documents), as of the date of the Prospectus Supplement or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits 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.
(e) The statements made herein are set forth solely for the benefit of the Underwriters and are addressed to you solely in your capacity as the underwriters of the Securities. Neither this letter nor any of such statements may be used or relied upon by, or assigned to, any other person (including any subsequent purchaser or transferee of the Securities), and neither this letter nor any copies hereof may be furnished to any other person, filed with a governmental agency, quoted, cited or otherwise referred to without our prior written consent.
SCHEDULE A
1. | Issuer free writing prospectus filed by the Company with the Commission on September 19, 2012. |
Exhibit 4.1
EXECUTION COPY
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of September 24, 2012 (the Third Supplemental Indenture ), by and between FRANKLIN RESOURCES, INC., a Delaware corporation having its principal executive offices located at One Franklin Parkway, San Mateo, California 94403 (the Company ), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association having its main office located at 400 South Hope Street, Suite 400, Los Angeles, California 90071, as successor trustee (the Trustee ), is to that certain Indenture, dated as of May 19, 1994, between the Company and the Trustee as amended and supplemented by a First Supplemental Indenture, dated as of October 9, 1996 (collectively, and as further supplemented hereby, the Indenture ). Capitalized terms used and not otherwise defined in this Third Supplemental Indenture shall have the meanings ascribed thereto in the Indenture.
RECITALS
WHEREAS, Sections 201, 301 and 901 of the Indenture provide, among other things, that the Company and the Trustee may enter into indentures supplemental to the Indenture, without notice to or consent of any Holders of Securities, to establish the form or specific terms applicable to any series of Securities;
WHEREAS, the Company desires and has requested the Trustee to join with it in the execution and delivery of this Third Supplemental Indenture providing for the creation and issuance of two series of Securities under the Indenture, the titles of which shall be the 1.375% Notes due 2017 (the 2017 Notes ) and the 2.800% Notes due 2022 (the 2022 Notes and, together with the 2017 Notes, the Notes );
WHEREAS, this Third Supplemental Indenture has been duly authorized by all necessary corporate action on the part of the Company; and
WHEREAS, pursuant to this Third Supplemental Indenture, the Company shall issue and deliver, and the Trustee shall authenticate, the 2017 Notes and the 2022 Notes pursuant to the terms of this Third Supplemental Indenture and substantially in the Form of Global Note for the 2017 Notes as set forth as Annex A-1 hereto (the 2017 Global Note ) and for the 2022 Notes as set forth as Annex A-2 hereto (the 2022 Global Note and, together with the 2017 Global Note, the Global Note );
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
Terms of the Notes
Section 1.1 Amount and Denominations . There is hereby established pursuant to and under the Indenture (i) a series of Securities titled the 1.375% Notes due 2017 and (ii) a series of Securities titled the 2.800% Notes due 2022. The aggregate principal amount in which the Notes may be initially authenticated and delivered under this Third Supplemental Indenture is limited to: (i) $300,000,000 aggregate principal amount of 2017 Notes and (ii) $300,000,000 aggregate principal amount of 2022 Notes; provided , however , that the Company and the Trustee may authenticate and
deliver, and the Company may issue, additional Notes from time to time in an unlimited amount, subject to compliance with the terms and conditions of the Indenture. The Notes shall be denominated in United States dollars in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes will be issued in global form.
Section 1.2 Maturity . The 2017 Notes shall mature on September 15, 2017, and the 2022 Notes shall mature on September 15, 2022 (each, a Stated Maturity ).
Section 1.3 Interest and Interest Rate . Each 2017 Note shall bear interest from September 24, 2012, at the annual rate of 1.375%. Each 2022 Note shall bear interest from September 24, 2012, at the annual rate of 2.800%. Interest on the Notes shall be payable semi-annually in arrears on March 15 and September 15 of each year (each, an Interest Payment Date ), commencing March 15, 2013, to the Persons in whose names the Notes are registered at the close of business on the immediately preceding March 1 and September 1, respectively, subject to certain exceptions set forth in the 2017 Global Note and the 2022 Global Note, attached hereto as Annex A-1 and A-2, respectively. The amount of interest payable on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months. If any Interest Payment Date or the Maturity Date of the Notes is not a Business Day, then the related payment of interest and/or principal on such date will be paid on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date or Maturity Date and no further interest will accrue in respect of the delay.
Section 1.4 Ranking . The Notes will be unsecured and unsubordinated obligations of the Company and will rank equal in right of payment with respect to each other and to all the other existing and future unsubordinated Indebtedness of the Company.
Section 1.5 Optional Redemption . The Notes of each series shall be redeemable as a whole or in part, at the Companys option, at any time at a redemption price (as calculated 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 of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 12.5 basis points, in the case of the 2017 Notes and 20 basis points, in the case of the 2022 Notes, plus in each case accrued and unpaid interest thereon to, but not including, the date of redemption.
For purposes of this Section 1.5:
Comparable Treasury Issue means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes of the applicable series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (A) the average of the four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company.
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Reference Treasury Dealer means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, or their respective affiliates which are primary U.S. government securities dealers, and two other primary U.S. government securities dealers selected by the Company, and each of their respective successors that are primary U.S. government securities dealers; provided , however , that if any of the foregoing or their affiliates shall cease to be a primary U.S. government securities dealer in The City of New York (a Primary Treasury Dealer), the Company shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated yield to maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
Notice of any redemption shall be given by the Company or by the Trustee in the Companys name, at the written request and expense of the Company, at least 30 days but not more than 60 days before the redemption date to each Holder of the Notes. In connection with any redemption, the Company shall deliver to the Trustee an Officers Certificate setting forth the calculation of the redemption price no later than two (2) Business Days prior to the redemption date. On or before a redemption date, the Company shall deposit with a paying agent (or the Trustee) money sufficient to pay the redemption price of and accrued and unpaid interest on the Notes to be redeemed on that date. If less than all of the Notes of a series are to be redeemed, the Notes of such series to be redeemed shall be selected pro rata or by lot and in accordance with the applicable depositary procedures.
Unless there occurs a default in payment of the redemption price, on and after the redemption date, interest shall cease to accrue on the Notes or portions thereof called for redemption.
Section 1.6 Sinking Fund . The Notes shall not be subject to the operation of any sinking fund or an analogous provision.
Section 1.7 Covenants . In addition to the covenants set forth in Article Ten of the Indenture, the following covenant shall apply to the Notes:
Limitation on Liens . The Company shall not, and shall not cause or permit any Included Subsidiary to, create, assume, incur or guarantee any Indebtedness for money borrowed that is secured by a pledge, mortgage or other lien on any Voting Stock or profit participating equity interests of the Included Subsidiaries or any entity that succeeds (whether by merger, consolidation, sale of assets or otherwise) to all or any substantial part of the business of the Included Subsidiaries and becomes an Included Subsidiary, without providing that the Notes (together with, if the Company shall so determine, any other Indebtedness of, or guarantee by, the Company ranking equally with the Notes and existing as of the date hereof or thereafter created) shall be secured equally and ratably with or prior to all other Indebtedness secured by such pledge, mortgage or other lien on the Voting Stock or profit participating equity interests of the Included Subsidiaries. This covenant shall not limit the ability of the Company or the ability of its Subsidiaries to incur Indebtedness or other obligations secured by liens on assets other than the Voting Stock or profit participating equity interests of the Included Subsidiaries, nor shall this covenant apply to Permitted Liens.
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For purposes of this Section 1.7:
Banking Subsidiary means, at any time, Fiduciary Trust Company International, Franklin Templeton Bank and Trust Company, F.S.B. or any other Subsidiary of the Company licensed to engage, and principally engaged, at such time in the banking or trust business or any Subsidiary of any such Subsidiary.
Consolidated Net Worth means, at a particular date, all amounts which would be included, under stockholders equity, on a consolidated balance sheet of the Company and its Included Subsidiaries determined on a consolidated basis in accordance with GAAP as at such date.
Finance Subsidiary means Franklin Capital Corporation or any other Subsidiary of the Company created for the sole purpose of acting as a finance or securitization subsidiary.
GAAP means generally accepted accounting principles in the United States of America in effect from time to time.
Included Subsidiary means any Subsidiary of the Company other than any Banking Subsidiary, Finance Subsidiary, Insurance Subsidiary or Real Estate Subsidiary.
Insurance Subsidiary means, at any time, any Subsidiary of the Company licensed to engage, and principally engaged, at such time in the insurance business or any Subsidiary of such Subsidiary.
Permitted Liens means
(i) liens existing at the time an entity becomes a Subsidiary of the Company or is merged into the Company or a Subsidiary of the Company,
(ii) statutory liens, liens granted to comply with regulatory requirements, liens for taxes or assessments or governmental charges or levies not yet due or delinquent or which can be paid without penalty or are being contested in good faith,
(iii) liens on any Voting Stock or profit participating equity interests of any Subsidiary of the Company that is acquired after the date hereof to secure or provide for the payment of the purchase price or acquisition cost thereof,
(iv) liens in favor of the Company or any Subsidiary,
(v) liens in existence on the date hereof,
(vi) liens (not otherwise permitted under this Section 1.7) which secure obligations in an aggregate amount at any one time outstanding not exceeding 10% of the Consolidated Net Worth, measured at the time of the creation, incurrence or assumption of any such lien and based upon the Consolidated Net Worth as at the end of the most recently completed fiscal quarter of the Company for which financial statements are publicly available, and
(vii) any extension, renewal, substitution, refinancing or replacement (or successive extensions, renewals, substitutions or replacements), in whole or in part, of any lien referred to in the foregoing clauses (i), (iii) and (v) that is secured by the same collateral that originally secured the lien.
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Real Estate Subsidiary means, at any time, any Subsidiary of the Company principally engaged at such time in the real estate investment and property management business or any Subsidiary of any such Subsidiary.
Subsidiary means, as to any Person at any time of determination, a corporation, partnership or other entity (other than any Fund or any other investment company or similar investment entity existing under foreign law substantially equivalent to an investment company) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries or Subsidiaries, or both, by such Person. Funds means the collective reference to all investment companies advised by the Company or any of its Subsidiaries.
Voting Stock means, with respect to any specified person (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
Section 1.8 Events of Default . Clauses (1), (2), (3) and (4) of Section 501 of the Indenture shall apply to the Notes. Clauses (5), (6) and (7) of Section 501 of the Indenture shall not apply to the Notes, but shall instead be replaced by the following:
(5) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company or any Significant Subsidiary, whether such Indebtedness now exists or shall hereafter be created, shall happen and shall result in such Indebtedness in principal amount in excess of $75,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not be rescinded or annulled, or such Indebtedness shall not have been discharged, within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes, a written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a Notice of Default hereunder; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company or any Significant Subsidiary in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company or any Significant Subsidiary to be insolvent, or approving a petition seeking reorganization, arrangement, adjustment or composition of the Company or any Significant Subsidiary and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company or any Significant Subsidiary or of any substantial part of the property of the Company or any Significant Subsidiary, as the case may be, or ordering the winding up or liquidation of the affairs of the Company or any Significant Subsidiary; or
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(7) the commencement by the Company or any Significant Subsidiary of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company or any Significant Subsidiary to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company or any Significant Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by the Company or any Significant Subsidiary to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company or any Significant Subsidiary or any substantial part of the property of the Company or any Significant Subsidiary or the making by the Company or any Significant Subsidiary of an assignment for the benefit of creditors, or the taking of corporate action by the Company or any Significant Subsidiary in furtherance of any such action.
For purposes of this Section 1.8:
Significant Subsidiary means any subsidiary that would be a significant subsidiary of the Company within the meaning of Rule 1-02 under Regulation S-X under the Securities Act of 1933, as amended, promulgated by the Commission.
Section 1.9 Legal Defeasance and Covenant Defeasance . Section 402 of Article Four of the Indenture shall not apply to the Notes. Instead, the following provisions shall apply to the Notes:
(a) Companys Option to Effect Defeasance or Covenant Defeasance . The Company may, at its option, effect defeasance of any series of Notes under Section 1.9(b), or covenant defeasance of any series of Notes under Section 1.9(c), in accordance with this section.
(b) Defeasance and Discharge . Upon the Companys exercise of the above option applicable to this Section 1.9(b) with respect to any Notes of such series, the Company shall be deemed to have been discharged from its obligations with respect to all Outstanding Notes (excluding those obligations which survive payment) of such series on the date the conditions set forth in Section 1.9(d) are satisfied (hereinafter, defeasance). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by such Outstanding Notes of such series, which shall thereafter be deemed to be Outstanding only for the purposes of the other Sections of the Indenture referred to in (A) and (B) below, and to have satisfied all its other obligations under such Notes of such series and this Indenture insofar as such Notes of such series are concerned (and the Trustee, at the written request and expense of the Company, shall execute proper instruments, prepared by the Company, acknowledging the same in accordance with the Indenture), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Notes of such series to receive, solely from the trust fund described in Section 1.9(d) and as more fully set forth in such section, payments in respect of the principal, premium, if any, and interest, if any, on such Notes of such series when such payments are due, (B) the Companys obligations with respect to such Notes of such series under Sections 304, 305, 306, 1002 and 1003 of the Indenture, (C) the rights, powers, trusts, duties, indemnity and immunities of the Trustee under the Indenture and hereunder, (D) Article Four of the Indenture, and (E) this Section 1.9. Subject to compliance with this Section 1.9, the Company may exercise its option under this section notwithstanding the prior exercise of its option under Section 1.9(c) with respect to such Notes of such series.
(c) Covenant Defeasance . Upon the Companys exercise of the above option applicable to this section with respect to any Notes of such series, the Company shall be released from its obligations
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under Sections 801 and 802 of the Indenture and its obligations under each and every covenant (other than Section 1001 of the Indenture but including Section 1.7 hereof) with respect to such Outstanding Notes of such series on and after the date the conditions set forth in Section 1.9(d) are satisfied (hereinafter, covenant defeasance), and such Notes of such series shall thereafter be deemed not to be Outstanding for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed Outstanding for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Notes of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant or provision, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or provision or by reason of reference in any such covenant or provision to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501 of the Indenture or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Notes of such series shall be unaffected thereby. In addition, upon the Companys exercise under Section 1.9(a) hereof of the option applicable to this Section 1.9(c), subject to the satisfaction of the conditions set forth in Section 1.9(d) hereof, Section 501(4) of the Indenture (solely with respect to the covenants that are released upon a covenant defeasance), clause (5) of Section 1.8 hereof, and clauses (6) and (7) of Section 1.8 hereof (solely with respect to Significant Subsidiaries) shall not constitute Events of Default under the Indenture.
(d) Conditions to Defeasance or Covenant Defeasance . The following shall be the conditions to application of either Section 1.9(b) or Section 1.9(c) to any Outstanding Notes of such series:
(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 606 of the Indenture who shall agree to comply with the provisions of this Section 1.9 applicable to it) in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Notes of such series, (A) money in an amount (in such Currency in which such Notes of such series are then specified as payable at Stated Maturity), or (B) U.S. Government Obligations applicable to such Notes of such series (determined on the basis of the Currency in which such Notes of such series are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest, if any, in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal, premium, if any, and interest, if any, under such Notes of such series, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal, premium, if any, and interest, if any, on such Outstanding Notes of such series on the Stated Maturity (or Redemption Date, if applicable) of such principal, premium, if any, or installment or interest, if any, on the day on which such payments are due and payable in accordance with the terms hereof; provided, however, that the Trustee shall have been irrevocably instructed by the Company, in writing, to apply such money or the proceeds of such U.S. Government Obligations to said payments with respect to such Notes.
(2) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, the Indenture.
(3) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Notes of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject
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to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. In the case of legal defeasance, the opinion must refer to and be based upon either (a) the Companys receipt from, or the publication by, the U.S. Internal Revenue Service of a ruling, or (b) a change in the applicable U.S. federal income tax law since the date of the Indenture.
(4) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the defeasance under Section 1.9(b) or the covenant defeasance under Section 1.9(c) (as the case may be) have been satisfied.
For purposes of this Section 1.9, U.S. Government Obligations means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the option of the issuer or issuers thereof.
Section 1.10 Amendment. Section 902 of the Indenture shall apply to the Notes, except that the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Notes shall be required to effect the amendments contemplated thereby that otherwise would require the consent of Holders of not less than 66 2 / 3 % in principal amount of the Outstanding Notes.
ARTICLE II
Miscellaneous
Section 2.1 Indenture Remains in Full Force and Effect . Except as supplemented hereby, all provisions in the Indenture shall remain in full force and effect.
Section 2.2 Indenture and Third Supplemental Indenture Construed Together . This Third Supplemental Indenture is an indenture supplemental to the Indenture, and the Indenture and this Third Supplemental Indenture shall be read and construed together for the purpose of the issuance of the Securities hereby.
Section 2.3 Confirmation and Preservation of Indenture . The Indenture as supplemented by this Third Supplemental Indenture is in all respects confirmed and preserved.
Section 2.4 Conflict with Trust Indenture Act . If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under the Trust Indenture Act to be part of and govern any provision of this Third Supplemental Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Third Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of the Trust Indenture Act shall be deemed to apply to the Indenture as so modified or to be excluded by this Third Supplemental Indenture, as the case may be.
Section 2.5 Severability . In case any provision in this Third Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of the Indenture shall not in any way be affected or impaired thereby.
Section 2.6 Benefits of Third Supplemental Indenture . Nothing in this Third Supplemental Indenture or the Notes, express or implied, shall give to any Person, other than the parties
8
hereto and thereto and their successors hereunder and thereunder and the Holders of the Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Third Supplemental Indenture or the Notes.
Section 2.7 Successors . All agreements of the Company in this Third Supplemental Indenture with respect to the issuance of the Notes hereby shall bind its successors except as provided in the Indenture. All agreements of the Trustee in this Third Supplemental Indenture shall bind its successors.
Section 2.8 Appointment of Trustee as Paying Agent and Security Registrar . The Company hereby initially appoints the Trustee to act as, and the Trustee hereby accepts and agrees to perform the duties and responsibilities of, the Paying Agent and Security Registrar for the Notes.
Section 2.9 Certain Duties and Responsibilities of the Trustee . In entering into this Third Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture and the Notes relating to the conduct or affecting the liability or affording protection to the Trustee, whether or not elsewhere herein so provided. The recitals contained herein are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Third Supplemental Indenture. All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee and in its role as Paying Agent and Security Registrar under this Third Supplemental Indenture.
Section 2.10. The Trustee . For purposes of the Notes, the following sections shall be added to Article Six of the Indenture:
Section 611. Duties of Trustee . In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 612. Incumbency Certificate . The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specific actions pursuant to the Indenture.
Section 613. Force Majeure . In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 614. Notices to Trustee . The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the
9
Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustees understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 615. Address for Notices to Trustee .
The Bank of New York Mellon Trust Company, N.A
400 South Hope Street, Suite 400
Los Angeles, CA 90071
Fax: (213) 630-6298
Section 2.11 Governing Law . This Third Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 2.12 Multiple Originals . The parties may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Third Supplemental Indenture.
Section 2.13 Headings . The Article and Section headings herein have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first written above.
Company | ||||
FRANKLIN RESOURCES, INC. | ||||
By: |
/s/ Kenneth A. Lewis |
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Name: | Kenneth A. Lewis | |||
Title: | Executive Vice President and Chief Financial Officer | |||
Trustee | ||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
By: |
/s/ Teresa Petta |
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Name: | Teresa Petta | |||
Title: | Vice President |
SIGNATURE PAGE TO THIRD SUPPLEMENTAL INDENTURE
ANNEX A-1
THIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
REGISTERED | $[ ] |
No. [ ] | CUSIP No. 354613AH4 |
FRANKLIN RESOURCES, INC.
1.375% NOTES DUE 2017
Franklin Resources, Inc., a Delaware corporation (the Company), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal amount stated above on September 15, 2017 (the Maturity Date) and to pay interest thereon at the rate per annum equal to 1.375% (the Interest Rate) until the principal hereof is fully paid or duly made available for payment. The Company will pay interest at the Interest Rate per annum specified above (computed on the basis of a 360-day year consisting of twelve 30-day months) semi-annually in arrears on March 15 and September 15 of each year (each an Interest Payment Date) commencing March 15, 2013 and on the Maturity Date on said principal amount. Interest on this Note will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid, from September 24, 2012 until the principal hereof has been paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on the Interest Payment Dates, will, as provided in the Indenture referred to below, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be March 1 or September 1, whether or not a Business Day, as the case may be, immediately preceding such Interest Payment Date; provided , however , that interest payable on the Maturity Date will be payable to the Person to whom the principal hereof shall be payable; and provided , further , however , that if such Interest Payment Date or the Maturity Date would fall on a day that is not a Business Day, such Interest Payment Date or the Maturity Date shall be the next succeeding Business Day. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on such Regular Record Date, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to the Holder of this Note not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
A-1-1
Payment of the principal of and interest on this Note shall be made at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debt; provided , however , that payment of interest on any Interest Payment Date (other than the Maturity Date) may be made at the option of the Company by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or by wire transfer of immediately available funds, if the registered Holder has so requested by a notice in writing delivered to the Trustee not less than 16 days prior to the Interest Payment Date on which such payment is due, which notice shall provide appropriate instructions for such transfer.
The principal hereof and interest due at maturity will be paid upon maturity in immediately available funds against presentation of this Note at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or instruments entered into and performed in said state.
Unless the certificate of authentication hereon has been executed by The Bank of New York Mellon Trust Company, N.A. as the Trustee under the Indenture, or its successor thereunder by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-1-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: September 24, 2012
FRANKLIN RESOURCES, INC. | ||||
By: |
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Name: | Kenneth A. Lewis | |||
Title: | Executive Vice President and Chief Financial Officer |
Attested:
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Maria Gray |
Secretary |
This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Trustee |
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By: |
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Authorized Signatory |
[2017 Global Note Signature Page]
A-1-3
[Reverse of Note]
FRANKLIN RESOURCES INC.
1.375% NOTES DUE 2017
This Note is one of a duly authorized issue of debentures, notes or other evidences of Indebtedness (hereinafter called the Securities) of the Company of the series hereinafter specified, all such Securities issued and to be issued under the Indenture, dated as of May 19, 1994, as amended and supplemented by the First Supplemental Indenture, dated as of October 9, 1996 and as further amended and supplemented by the Third Supplemental Indenture, dated as of September 24, 2012 (the Indenture ) between the Company and The Bank of New York Mellon Trust Company, N.A., as successor in interest to Chemical Bank, as trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures or officers certificates, as applicable, supplemental thereto, reference is hereby made for a statement of the respective rights and limitations of rights thereunder of the Company, the Trustee and the Holders of the Securities, and the terms upon which the Securities are, and are to be, authenticated and delivered. As provided in the Indenture, Securities 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 repayment provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated as 1.375% Notes due 2017 (the Notes). The Notes are unsecured and unsubordinated obligations of the Company and rank equal in right of payment to all other unsubordinated Indebtedness of the Company. The Notes are not subject to the operation of any sinking fund or an analogous provision.
The Notes are redeemable, as a whole or in part, at the Companys option at any time at a redemption price (as calculated 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 of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 12.5 basis points, plus accrued and unpaid interest thereon to, but not including, the date of redemption. Notice of any redemption will be given by the Company or the Trustee in the Companys name at the written request and expense of the Company, at least 30 days but not more than 60 days before the redemption date to each Holder of the Notes. In connection with any redemption, the Company shall deliver to the Trustee an Officers Certificate setting forth the calculation of the redemption price no later than two (2) Business Days prior to the redemption date. On or before a redemption date, the Company shall deposit with a paying agent (or the Trustee) money sufficient to pay the redemption price of and accrued and unpaid interest on the Notes to be redeemed on that date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected pro rata or by lot and in accordance with the applicable depositary procedures. Unless there occurs a default in payment of the redemption price, on and after the redemption date, interest shall cease to accrue on the Notes or portions thereof called for redemption.
A-1-4
Comparable Treasury Issue means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (A) the average of the four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company.
Reference Treasury Dealer means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, or their respective affiliates which are primary U.S. government securities dealers, and two other primary U.S. government securities dealers selected by the Company, and each of their respective successors that are primary U.S. government securities dealers; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. government securities dealer in The City of New York (a Primary Treasury Dealer), the Company shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated yield to maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
If any Event of Default (as defined in the Indenture) with respect to the Notes shall occur and be continuing, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal of all the Notes due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon future Holders of
A-1-5
this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Notes may not enforce their rights pursuant to the Indenture or the Notes except as provided in the Indenture. No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company in the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, and this Note duly executed by, the Holder hereof or by his attorney duly authorized in writing and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Note is exchangeable for a like aggregate principal amount of Notes of different authorized denominations as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice of the contrary.
All capitalized terms used in this Note and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
A-1-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto |
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE | ||
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE | ||
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing | ||
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Attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.
Dated: |
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(Signature Guarantee) |
A-1-7
ANNEX A-2
THIS NOTE IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
REGISTERED | $[ ] |
No. [ ] | CUSIP No. 354613AJ0 |
FRANKLIN RESOURCES, INC.
2.800% NOTES DUE 2022
Franklin Resources, Inc., a Delaware corporation (the Company), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal amount stated above on September 15, 2022 (the Maturity Date) and to pay interest thereon at the rate per annum equal to 2.800% (the Interest Rate) until the principal hereof is fully paid or duly made available for payment. The Company will pay interest at the Interest Rate per annum specified above (computed on the basis of a 360-day year consisting of twelve 30-day months) semi-annually in arrears on March 15 and September 15 of each year (each an Interest Payment Date) commencing March 15, 2013 and on the Maturity Date on said principal amount. Interest on this Note will accrue from the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid, from September 24, 2012 until the principal hereof has been paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on the Interest Payment Dates, will, as provided in the Indenture referred to below, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be March 1 or September 1, whether or not a Business Day, as the case may be, immediately preceding such Interest Payment Date; provided , however , that interest payable on the Maturity Date will be payable to the Person to whom the principal hereof shall be payable; and provided , further , however , that if such Interest Payment Date or the Maturity Date would fall on a day that is not a Business Day, such Interest Payment Date or the Maturity Date shall be the next succeeding Business Day. Any such interest which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on such Regular Record Date, and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to the Holder of this Note not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
A-2-1
Payment of the principal of and interest on this Note shall be made at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debt; provided , however , that payment of interest on any Interest Payment Date (other than the Maturity Date) may be made at the option of the Company by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or by wire transfer of immediately available funds, if the registered Holder has so requested by a notice in writing delivered to the Trustee not less than 16 days prior to the Interest Payment Date on which such payment is due, which notice shall provide appropriate instructions for such transfer.
The principal hereof and interest due at maturity will be paid upon maturity in immediately available funds against presentation of this Note at the office or agency of the Trustee maintained for that purpose in the Borough of Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or instruments entered into and performed in said state.
Unless the certificate of authentication hereon has been executed by The Bank of New York Mellon Trust Company, N.A. as the Trustee under the Indenture, or its successor thereunder by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-2-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: September 24, 2012
FRANKLIN RESOURCES, INC. | ||||
By: |
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Name: | Kenneth A. Lewis | |||
Title: | Executive Vice President and Chief Financial Officer |
Attested: |
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Maria Gray |
Secretary |
This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., as Trustee |
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By: |
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Authorized Signatory |
[2022 Global Note Signature Page]
A-2-3
[Reverse of Note]
FRANKLIN RESOURCES INC.
2.800% NOTES DUE 2022
This Note is one of a duly authorized issue of debentures, notes or other evidences of Indebtedness (hereinafter called the Securities) of the Company of the series hereinafter specified, all such Securities issued and to be issued under the Indenture, dated as of May 19, 1994, as amended and supplemented by the First Supplemental Indenture, dated as of October 9, 1996 and as further amended and supplemented by the Third Supplemental Indenture, dated as of September 24, 2012 (the Indenture ) between the Company and The Bank of New York Mellon Trust Company, N.A., as successor in interest to Chemical Bank, as trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all indentures or officers certificates, as applicable, supplemental thereto, reference is hereby made for a statement of the respective rights and limitations of rights thereunder of the Company, the Trustee and the Holders of the Securities, and the terms upon which the Securities are, and are to be, authenticated and delivered. As provided in the Indenture, Securities 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 repayment provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided or permitted. This Note is one of a series of the Securities designated as 2.800% Notes due 2022 (the Notes). The Notes are unsecured and unsubordinated obligations of the Company and rank equal in right of payment to all other unsubordinated Indebtedness of the Company. The Notes are not subject to the operation of any sinking fund or an analogous provision.
The Notes are redeemable, as a whole or in part, at the Companys option at any time at a redemption price (as calculated 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 of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points, plus accrued and unpaid interest thereon to, but not including, the date of redemption. Notice of any redemption will be given by the Company or the Trustee in the Companys name at the written request and expense of the Company, at least 30 days but not more than 60 days before the redemption date to each Holder of the Notes. In connection with any redemption, the Company shall deliver to the Trustee an Officers Certificate setting forth the calculation of the redemption price no later than two (2) Business Days prior to the redemption date. On or before a redemption date, the Company shall deposit with a paying agent (or the Trustee) money sufficient to pay the redemption price of and accrued and unpaid interest on the Notes to be redeemed on that date. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected pro rata or by lot and in accordance with applicable depositary procedures. Unless there occurs a default in payment of the redemption price, on and after the redemption date, interest shall cease to accrue on the Notes or portions thereof called for redemption.
A-2-4
Comparable Treasury Issue means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.
Comparable Treasury Price means, with respect to any redemption date, (A) the average of the four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company.
Reference Treasury Dealer means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, or their respective affiliates which are primary U.S. government securities dealers, and two other primary U.S. government securities dealers selected by the Company, and each of their respective successors that are primary U.S. government securities dealers; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. government securities dealer in The City of New York (a Primary Treasury Dealer), the Company shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated yield to maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
If any Event of Default (as defined in the Indenture) with respect to the Notes shall occur and be continuing, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal of all the Notes due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon future Holders of
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this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Notes may not enforce their rights pursuant to the Indenture or the Notes except as provided in the Indenture. No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company in the Borough of Manhattan, The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company, and this Note duly executed by, the Holder hereof or by his attorney duly authorized in writing and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, this Note is exchangeable for a like aggregate principal amount of Notes of different authorized denominations as requested by the Holder surrendering the same.
No service charge will be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice of the contrary.
All capitalized terms used in this Note and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE |
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE |
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the within Note and all rights thereunder, hereby irrevocably constituting and appointing |
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Attorney to transfer said Note on the books of the Company, with full power of substitution in the premises.
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(Signature Guarantee) |
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Exhibit 5.1
767 Fifth Avenue
New York, NY 10153-0119
+1 212 310 8000 tel
+1 212 310 8007 fax
September 24, 2012
Franklin Resources, Inc.
One Franklin Parkway
San Mateo, California 94403
Ladies and Gentlemen:
We have acted as counsel to Franklin Resources, Inc., a Delaware corporation (the Company ), in connection with the offer and sale by the Company of (i) $300,000,000 million aggregate principal amount of the Companys 1.375% Notes due 2017 (the 2017 Notes ) pursuant to the underwriting agreement, dated as of September 19, 2012 (the 2017 Notes Underwriting Agreement ), between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley & Co. LLC, as representatives (the Representatives ) of the several underwriters named therein, and (ii) $300,000,000 million aggregate principal amount of the Companys 2.800% Notes due 2022 (together with the 2017 Notes, the Notes ) pursuant to the underwriting agreement, dated as of September 19, 2012 (together with the 2017 Underwriting Agreement, the Underwriting Agreements ), between the Company and the Representatives. The Notes will be issued pursuant to the Indenture, dated as of May 19, 1994 (the Base Indenture ) between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to Chemical Bank, as Trustee (the Trustee ), as amended and supplemented by a first supplemental indenture thereto, dated as of October 9, 1996 and a third supplemental indenture thereto, dated as of September 24, 2012, in each case between the Company and the Trustee (as so amended and supplemented, the Indenture ).
In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Certificate of Incorporation of the Company, as amended, (ii) the Amended and Restated By-laws of the Company, (iii) the Companys Registration Statement on Form S-3 (File No. 333-183969) filed with the Securities and Exchange Commission (the Commission ) on September 19, 2012 (the Registration Statement ), (iv) the Prospectus, dated September 19, 2012 (the Base Prospectus ), which forms a part of the Registration Statement, (v) the Prospectus Supplement, dated September 19, 2012 and filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended, on September 19, 2012 (together with the Base Prospectus, the Prospectus ), (vi) the Underwriting Agreements, (vii) the Indenture, (viii) executed copies of global certificates representing the Notes, and (ix) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the
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Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to the opinion set forth herein that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company. We have also assumed (i) the valid existence of the Trustee, (ii) that the Trustee has the requisite corporate power and authority to enter into and perform its obligations under the Indenture, (iii) the due authorization, execution and delivery of the Indenture by the Trustee, and (iv) that the Indenture constitutes the legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms.
Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that, upon the due authentication by the Trustee, the Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
The opinions expressed herein are limited to the laws of the State of New York and the corporate laws of the State of Delaware, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the incorporation by reference of this letter as an exhibit to the Registration Statement and to the reference to our firm under the caption Legal Matters in the Prospectus.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP