UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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): October 22, 2018
Conagra Brands, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 1-7275 | 47-0248710 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
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222 Merchandise Mart Plaza, Suite 1300 Chicago, Illinois |
60654 | |||
(Address of principal executive offices) | (Zip Code) |
(312) 549-5000
(Registrants telephone number, including area code)
N/A
(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:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. |
Entry into a Material Definitive Agreement. |
On October 15, 2018, Conagra Brands, Inc. (the Company) agreed to sell $525,000,000 aggregate principal amount of its Floating Rate Notes due 2020 (the 2020 floating rate notes), $1,200,000,000 aggregate principal amount of its 3.800% Senior Notes due 2021 (the 2021 notes), $1,000,000,000 aggregate principal amount of its 4.300% Senior Notes due 2024 (the 2024 notes), $1,000,000,000 aggregate principal amount of its 4.600% Senior Notes due 2025 (the 2025 notes), $1,300,000,000 aggregate principal amount of its 4.850% Senior Notes due 2028 (the 2028 notes), $1,000,000,000 aggregate principal amount of its 5.300% Senior Notes due 2038 (the 2038 notes) and $1,000,000,000 aggregate principal amount of its 5.400% Senior Notes due 2048 (the 2048 notes, and together with the 2021 notes, the 2024 notes, the 2025 notes, the 2028 notes and the 2038 notes, the fixed rate notes) pursuant to an underwriting agreement, dated October 15, 2018, by and among the Company and Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Mizuho Securities USA LLC, acting as representatives of the several underwriters named therein. The 2020 floating rate notes and the fixed rate notes are collectively referred to as the Notes. The offering of the Notes was registered under the Securities Act of 1933, as amended, pursuant to the Companys Registration Statement on Form S-3 (Registration No. 333-227740). A prospectus supplement relating to the offering and sale of the Notes was filed with the Securities and Exchange Commission on October 17, 2018.
The terms of the Notes will be governed by an indenture, dated as of October 12, 2017 (the Base Indenture), as supplemented by a supplemental indenture, to be dated as of October 22, 2018 (the Second Supplemental Indenture and collectively with the Base Indenture, the Indenture), in each case by and between the Company and Wells Fargo Bank, National Association, as trustee. The Indenture contains customary covenants that, among other things, limit the ability of the Company, with certain exceptions, to incur debt secured by liens, engage in sale and leaseback transactions and enter into certain consolidations, mergers and transfers of all or substantially all of the assets of the Company and its subsidiaries, taken as a whole.
The Company may redeem some or all of the fixed rate notes of each series at any time and from time to time prior to their maturity, and the 2020 floating rate notes on or after October 22, 2019, at the applicable redemption prices described in the prospectus supplement. Upon the occurrence of a Change of Control Triggering Event, as defined in the Indenture, the Company will be required to offer to repurchase the Notes at 101% of the aggregate principal amount thereof, plus any accrued and unpaid interest, if any, to, but excluding, the repurchase date. In addition, the 2020 floating rate notes, the 2021 notes, the 2024 notes, the 2025 notes, the 2028 notes and the 2038 notes (the Special Mandatory Redemption Notes) will be subject to a special mandatory redemption in the event that (i) the pending merger with Pinnacle Foods Inc. (the Merger) is not consummated on or prior to April 1, 2019 or (ii) prior to April 1, 2019, the merger agreement pursuant to which the Merger will occur is terminated, other than in connection with the consummation of the Merger. If a special mandatory redemption event occurs, the Company will be obligated to redeem all of the outstanding Special Mandatory Redemption Notes on the Special Mandatory Redemption Date, as defined in the Second Supplemental Indenture, at the special mandatory redemption price equal to 101% of the aggregate principal amount thereof, plus accrued and unpaid interest, to, but not including the Special Mandatory Redemption Date. The 2048 notes are not subject to the special mandatory redemption and will remain outstanding even if the Company does not consummate the Merger, unless otherwise redeemed or repurchased.
The Indenture contains customary events of default, including failure to make required payments of principal and interest, certain events of bankruptcy and insolvency and default in the performance or breach of any covenant or warranty contained in the Indenture or the Notes.
The 2020 floating rates notes will mature on October 22, 2020 and bear interest at a rate equal to three-month LIBOR plus 0.750% per year, payable quarterly on January 22, April 22, July 22 and October 22 of each year, commencing on January 22, 2019. The 2021 notes will mature on October 22, 2021 and bear interest at a rate equal to 3.800% per year, commencing on April 22, 2019. The 2024 notes will mature on May 1, 2024 and bear interest at a rate equal to 4.300% per year, commencing on May 1, 2019. The 2025 notes will mature on November 1, 2025 and bear interest at a rate equal to 4.600% per year, commencing on May 1, 2019. The 2028 notes will mature on November 1, 2028 and bear interest at a rate equal to 4.850% per year, commencing on May 1, 2019. The 2038 notes will mature on November 1, 2038 and bear interest at a rate equal to 5.300% per year, commencing on May 1, 2019. The 2048 notes will mature on November 1, 2048 and bear interest at a rate equal to 5.400% per year, commencing on May 1, 2019.
The Notes will be unsecured senior obligations of the Company and rank equally in right of payment with all of its other senior unsecured debt, are effectively subordinated to any of the Companys secured debt to the extent of the value securing such debt and are structurally subordinated to the debt of the Companys subsidiaries.
The underwriters and their affiliates have provided, are currently providing and in the future may continue to provide investment banking, commercial banking and other financial services, including the provision of credit facilities, to the Company in the ordinary course of business for which they have received and will receive customary compensation.
The foregoing description of the Indenture is qualified in its entirety by reference to the full text of the Base Indenture and the Second Supplemental Indenture, copies of which are filed as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The description contained under Item 1.01 above is hereby incorporated by reference in its entirety into this Item 2.03.
Item 8.01. |
Other Events. |
In connection with the offering of the Notes, the following exhibits are filed with this Current Report on Form 8-K and are incorporated by reference herein: (i) the Underwriting Agreement, (ii) the Base Indenture, (iii) the Second Supplemental Indenture and (iv) an opinion of Jones Day and related consent.
Item 9.01. |
Financial Statements and Exhibits. |
(d) |
Exhibits. |
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 thereunto duly authorized.
CONAGRA BRANDS, INC. | ||||||
Date: October 22, 2018 | By: |
/s/ Colleen Batcheler |
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Name: | Colleen Batcheler | |||||
Title: | Executive Vice President, General Counsel and Corporate Secretary |
Exhibit 1.1
CONAGRA BRANDS, INC.
$525,000,000 Floating Rate Notes due 2020
$1,200,000,000 3.800% Senior Notes due 2021
$1,000,000,000 4.300% Senior Notes due 2024
$1,000,000,000 4.600% Senior Notes due 2025
$1,300,000,000 4.850% Senior Notes due 2028
$1,000,000,000 5.300% Senior Notes due 2038
$1,000,000,000 5.400% Senior Notes due 2048
UNDERWRITING AGREEMENT
October 15, 2018
Goldman Sachs & Co. LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
Underwriting Agreement
October 15, 2018
GOLDMAN SACHS & CO. LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES LLC
MIZUHO SECURITIES USA LLC
As Representatives of the several Underwriters
c/o GOLDMAN SACHS & CO. LLC
200 West Street
New York, New York 10036
c/o MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
One Bryant Park
New York, New York 10036
c/o J.P. MORGAN SECURITIES LLC
383 Madison Avenue
New York, New York 10179
c/o MIZUHO SECURITIES USA LLC
320 Park Avenue
New York, New York 10022
Ladies and Gentlemen:
Introductory. Conagra Brands, Inc., a Delaware corporation (the Company ), proposes to issue and sell to the several underwriters named in Schedule A (the Underwriters ), acting severally and not jointly, the respective amounts set forth in such Schedule A of $1,200,000,000 aggregate principal amount of the Companys 3.800% Senior Notes due 2021 (the 2021 Notes ), $1,000,000,000 aggregate principal amount of the Companys 4.300% Senior Notes due 2024 (the 2024 Notes ), $1,000,000,000 aggregate principal amount of the Companys 4.600% Senior Notes due 2025 (the 2025 Notes ), $1,300,000,000 aggregate principal amount of the Companys 4.850% Senior Notes due 2028 (the 2028 Notes ), $1,000,000,000 aggregate
principal amount of the Companys 5.300% Senior Notes due 2038 (the 2038 Notes ), $1,000,000,000 aggregate principal amount of the Companys 5.400% Senior Notes due 2048 (the 2048 Notes ) and $525,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2020 (the 2020 Floating Rate Notes, and together with the 2021 Notes, the 2024 Notes, the 2025 Notes, the 2028 Notes, the 2038 Notes and the 2048 Notes, the Notes ). Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Mizuho Securities USA LLC have agreed to act as representatives of the several Underwriters (in such capacity, the Representatives ) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of October 12, 2017 (the Base Indenture ), entered into between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee ). Certain terms of the Notes will be established pursuant to a Second Supplemental Indenture, to be executed and delivered pursuant to the Base Indenture as of the Closing Date (as defined below) (the Second Supplemental Indenture , and together with the Base Indenture, the Indenture ). The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the Depositary ), pursuant to a Blanket Letter of Representations, dated October 3, 2017 (the DTC Agreement ), delivered by the Company to the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the Commission ) a registration statement on Form S-3 (File No. 333-227740), which contains a base prospectus (the Base Prospectus ), to be used in connection with the public offering and sale of debt securities, including the Notes, and other securities of the Company under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the Securities Act ), in accordance with Rule 415 under the Securities Act. Such registration statement, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the Registration Statement . The term Prospectus shall mean the final prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement is executed (the Execution Time ) by the parties hereto. The term Preliminary Prospectus shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b) under the Securities Act. Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are incorporated by reference therein or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to 6:35 p.m., New York City time, on October 15, 2018 (the Initial Sale Time ). All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System ( EDGAR ).
All references in this Agreement to financial statements and schedules and other information which is contained, included or stated (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to
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mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the Exchange Act ), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
S ECTION 1. Representations and Warranties of the Company .
The Company hereby represents, warrants and covenants to each Underwriter as follows:
a) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement and any post-effective amendments thereto are effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendments thereto has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the Trust Indenture Act ).
The Registration Statement and any post-effective amendments thereto have been declared effective and as of the Initial Sale Time and at the Closing Date, the Registration Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus (including any applicable prospectus wrapper) nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto (i) made in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8 hereof or (ii) relating to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualifications (Form T-1) of the Trustee under the Trust Indenture Act.
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Each Preliminary Prospectus and the Prospectus, and any amendments or supplements thereto, at the time of filing with the Commission, complied and will comply in all material respects with the Securities Act and the Trust Indenture Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
b) Disclosure Package. The term Disclosure Package shall mean (i) the Preliminary Prospectus dated October 15, 2018, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an Issuer Free Writing Prospectus ), if any, identified in Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8 hereof.
c) Incorporated Documents . The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Securities Act or Exchange Act, as applicable, and did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
d) Company is a Well-Known Seasoned Issuer . (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, an incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) as of the Execution Time, the Company was and is a well-known seasoned issuer as defined in Rule 405 of the Securities Act. The Registration Statement is an automatic shelf registration statement, as defined in Rule 405 of the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
e) Company is not an Ineligible Issuer . (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
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f) Issuer Free Writing Prospectuses . Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Notes under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in this paragraph, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. As of the Initial Sale Time, each Issuer Free Writing Prospectus, as supplemented by and taken together with the Disclosure Package, did not, and as of the Closing Time, will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The first two sentences of this paragraph do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof. Each Issuer Free Writing Prospectus complied or will comply in all material respects with the requirements of the Securities Act on the date of first use, and the Company has complied or will comply with any filing requirements applicable to Issuer Free Writing Prospectuses pursuant to the Securities Act. The Company has retained or will retain in accordance with the Securities Act all Issuer Free Writing Prospectuses that were not or are not required to be filed with the Commission.
g) Distribution of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex I hereto or the Registration Statement.
h) No Applicable Registration Rights. There are no persons with registration rights to have any equity or debt securities of the Company registered under the Securities Act for sale under the Registration Statement, except for such rights as have been duly waived.
i) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
j) Authorization of the Indenture . The Base Indenture has been duly qualified under the Trust Indenture Act. The Base Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against
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the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. The Second Supplemental Indenture has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and, when executed and delivered by the Trustee, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
k) Authorization of the Notes. The Notes to be purchased by the Underwriters from the Company are in the form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
l) Description of the Notes and the Indenture. The Notes and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
m) Accuracy of Statements in Prospectus. The statements in each of the Disclosure Package and the Prospectus under the captions Description of Notes and Description of Debt Securities, in each case insofar as such statements constitute a summary of the legal matters or documents referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
n) No Material Adverse Change . Except as otherwise disclosed in the Disclosure Package, subsequent to the respective dates as of which information is given in the Disclosure Package, there has been (i) no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings or business affairs of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business (any such change is called a Material Adverse Change ) or (ii) to the Companys knowledge, no material adverse change, or any development that could reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings or business affairs of Pinnacle Foods Inc. ( Pinnacle ) and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business.
o) Independent Accountants. To the knowledge of the Company, KPMG LLP, independent public accountants for the Company, who have expressed their opinion with respect to the Companys audited financial statements for the fiscal years ended May 27, 2018, May 28, 2017 and May 29, 2016 incorporated by reference in the Registration Statement, the Preliminary
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Prospectus and the Prospectus, are independent public accountants with respect to the Company and its subsidiaries as required by the Securities Act and the Exchange Act and are an independent registered public accounting firm with the Public Company Accounting Oversight Board.
p) Preparation of the Financial Statements. The financial statements together with the related notes thereto of the Company incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements comply as to form in all material respects with the accounting requirements of the Securities Act and have been prepared in conformity with generally accepted accounting principles as applied in the United States ( GAAP ) applied on a consistent basis throughout the periods involved, except as otherwise noted therein. No financial statements are required to be included in the Registration Statement pursuant to Regulation S-X other than those included or incorporated by reference therein. The selected financial data and the summary financial information of the Company included in the Preliminary Prospectus and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements of the Company included in the Registration Statement, the Preliminary Prospectus and the Prospectus. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly in all material respects the information called for and has been prepared in accordance with the Commissions rules and guidelines applicable thereto. The pro forma financial statements and related summary pro forma financial information (the Pro Formas ) of the Company included or incorporated by reference in the Preliminary Prospectus and the Prospectus showing the effect of the proposed acquisition of Pinnacle by the Company (the Merger ), and the related notes thereto, have been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act, and the assumptions underlying the Pro Formas are reasonable. The Company has reviewed the financial statements together with the related notes thereto of Pinnacle incorporated by reference in the Preliminary Prospectus and the Prospectus with both Pinnacle and its independent registered public accounting firm, Deloitte & Touche LLP, and, based on such review, to the Companys knowledge, the financial statements together with the related notes thereto of Pinnacle incorporated by reference in the Preliminary Prospectus and the Prospectus present fairly in all material respects the consolidated financial position of Pinnacle and Pinnacles consolidated subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified, and said financial statements comply as to form in all material respects with the accounting requirements of the Securities Act and have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved, except as otherwise noted therein. Each financial or operational projection or other forward-looking statement (as defined by Section 27A of the Securities Act or Section 21E of the Exchange Act, or as defined by any other applicable securities laws) contained or incorporated by reference in the Registration Statement, Preliminary Prospectus or the Prospectus (i) was so included by the Company in good faith and with reasonable basis after due consideration by the Company of the underlying assumptions, estimates and other applicable facts and circumstances and (ii) is accompanied by meaningful cautionary statements identifying those factors that could cause actual results to differ materially from those in such forward-looking statement.
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q) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company and its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X, the Significant Subsidiaries ) has been duly organized and is validly existing as a corporation or limited liability company, as applicable, in good standing under the laws of the jurisdiction of its incorporation or organization and has corporate or limited liability company power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and, in the case of the Company, to execute, deliver and perform its obligations under this Agreement, the Indenture and the Notes. Each of the Company and the Significant Subsidiaries is duly qualified as a foreign corporation or limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Change. All of the issued and outstanding shares of capital stock or equity securities of each wholly-owned Significant Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through wholly-owned subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
r) Capitalization and Other Capital Stock Matters. As of August 26, 2018, the authorized, issued and outstanding capital stock of the Company is as set forth in the balance sheet contained in the Companys Quarterly Report on Form 10-Q for the quarterly period ended August 26, 2018, which is incorporated by reference in the Disclosure Package and the Prospectus.
s) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its Significant Subsidiaries is (i) in material violation or in default (or, with the giving of notice or lapse of time or both, would be in default) ( Default ) under its certificate of incorporation, charter or by-laws or similar organizational documents, as the case may be, (ii) in Default under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement, obligation, condition, covenant or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject (each, an Existing Instrument ) or (iii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their respective properties, as applicable, except, with respect to clauses (ii) and (iii) only, for such Defaults or violations as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change or have a material adverse effect on the ability of the Company to perform its obligations under this Agreement, the Indenture and the Notes. The Companys execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been duly authorized by all necessary corporate action and do not and will not result in any Default under the certificate of incorporation, charter or by-laws or similar organizational documents of
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the Company or any of its Significant Subsidiaries, (ii) do not and will not conflict with or constitute a breach of, or Default under, or give to others any rights of termination, acceleration or cancellation of, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Significant Subsidiaries under, any Existing Instrument, and (iii) do not and will not result in any violation of any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Significant Subsidiaries or any of its or their properties, except, with respect to clauses (ii) and (iii) only, for such Defaults or violations as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change or have a material adverse effect on the ability of the Company to perform its obligations under this Agreement, the Indenture and the Notes. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for the Companys execution, delivery and performance of this Agreement, the Indenture and the Notes or consummation of the transactions contemplated hereby or thereby, by the Disclosure Package or by the Prospectus, except such as have been or will be obtained or made by the Company under the Securities Act, the Exchange Act, the Trust Indenture Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority ( FINRA ).
t) No Material Actions or Proceedings. Except as disclosed in the Disclosure Package and the Prospectus, there are no actions, suits, proceedings, inquiries or investigations before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company, or any of its Significant Subsidiaries, which might reasonably be expected to result in a Material Adverse Change or have a material adverse effect on the ability of the Company to perform its obligations under this Agreement, the Indenture and the Notes.
u) Labor Matters. Except as disclosed in the Disclosure Package and the Prospectus, no material dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened, that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
v) Intellectual Property Rights. Except as set forth in the Disclosure Package and the Prospectus, to the Companys knowledge, the Company or its subsidiaries own or possess a valid right to use all patents, trademarks, service marks, trade names, copyrights, trade secret, know-how and other intellectual property (collectively, the Intellectual Property ) used by the Company or its subsidiaries in, and material to, the conduct of the Companys or its subsidiaries business as now conducted or as proposed in the Disclosure Package and the Prospectus to be conducted. Except as set forth in the Disclosure Package and the Prospectus, (i) to the knowledge of the Company, there is no material infringement by third parties of any Intellectual Property material to the conduct of the Companys business as now conducted, and (ii) there are no legal or governmental actions, suits, proceedings or claims pending or, to the Companys knowledge, threatened, against the Company (A) challenging the Companys rights in or to any Intellectual Property material to the conduct of the Companys business as now conducted, (B) challenging the validity or scope of any Intellectual Property owned by the Company and material to the conduct of the Companys business as now conducted, or (C) alleging that the
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operation of the Companys business as now conducted infringes the Intellectual Property of any third party, in any case that would, in the case of this clause (C), individually or in the aggregate, reasonably be expected to result in a Material Adverse Change.
w) All Necessary Permits, etc. The Company and each Significant Subsidiary possess such valid and current certificates, authorizations, permits, licenses, approvals, consents and other authorizations issued by, and have made all declarations and filings with, the appropriate state, federal or foreign regulatory agencies or bodies necessary to own their respective properties and to conduct their respective businesses, except where the failure to possess or to file would not reasonably be expected to result in a Material Adverse Change, and neither the Company nor any Significant Subsidiary has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization, permit, license, approval, consent or other authorization which, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Material Adverse Change.
x) Title to Properties. Except as otherwise disclosed in the Disclosure Package and the Prospectus, and except as would not individually or in the aggregate have a Material Adverse Change, the Company and each of its Significant Subsidiaries has good and marketable title to all the properties and assets reflected as owned in the financial statements referred to in Section 1(p) above (or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, claims and other defects.
y) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal, state, local and foreign income and franchise tax returns in a timely manner (taking into account any extensions of the time to file) and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them (other than any taxes, assessments, fines or penalties as may be being contested in good faith and by appropriate proceedings), except where a failure to make such filings or payments would not reasonably be expected to result in a Material Adverse Change. The Company has made appropriate provisions (to the extent required by GAAP) in the applicable financial statements referred to in Section 1(p) above in respect of all federal, state, local and foreign income and franchise taxes for all current or prior periods as to which the tax liability of the Company or any of its subsidiaries has not been finally determined.
z) Company Not an Investment Company. The Company is not, and, solely after giving effect to (i) the receipt of payment for the Notes, and (ii) the receipt of payment for the Companys Common Stock, par value $5.00 per share, as contemplated under the caption Recent Developments Common Stock Offering in the Disclosure Package and the Prospectus (the Concurrent Offering ), and the application of the proceeds thereof as contemplated under the caption Use of Proceeds in the Disclosure Package and the Prospectus, will not be, required to register as an investment company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
aa) No Price Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to or that would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
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bb) No Unlawful Contributions or Other Payments . None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, employee or affiliate of the Company or any of its subsidiaries, has made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment or is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA (as defined below), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
FCPA means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
cc) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws ) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
dd) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, employee or affiliate of the Company or any of its subsidiaries is currently subject to or the target of any sanctions administered or enforced by the United States federal government (including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury Department), the United Nations Security Counsel, the European Union, Her Majestys Treasury or other relevant sanctions authority (collectively, Sanctions ); and the Company will not directly or indirectly use the proceeds of the offering or the Concurrent Offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory, that, at the time of such funding, is subject to any Sanctions.
ee) Compliance with Environmental Laws. Except as otherwise disclosed in the Disclosure Package and the Prospectus, (i) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign law, regulation, order, permit or other legal
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requirement relating to pollution or protection of human health (with respect to exposure to Materials of Environmental Concern, as hereinafter defined) or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of regulated chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products (collectively, Materials of Environmental Concern ), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environment Concern (collectively, Environmental Laws ), which violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations required for the operation of the business of the Company or its subsidiaries under applicable Environmental Laws, or noncompliance with the terms and conditions thereof, nor has the Company or any of its subsidiaries received any written communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Company or any of its subsidiaries is in violation of any Environmental Law, except as would not, individually or in the aggregate, reasonably be expected to result in Material Adverse Change; (ii) there is no claim, action or cause of action filed with a court or governmental authority, no investigation with respect to which the Company has received written notice, and no written notice by any person or entity alleging potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, attorneys fees or penalties arising out of, based on or resulting from the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by the Company or any of its subsidiaries, now or in the past (collectively, Environmental Claims ), pending or, to the Companys knowledge, threatened against the Company or any of its subsidiaries or, the Companys knowledge, any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change; (iii) to the Companys knowledge, there has been no release, emission, discharge, presence or disposal of any Material of Environmental Concern in connection with the operation of Company or any of its subsidiaries, that reasonably could be expected to result in a violation of any Environmental Law or require expenditures to be incurred pursuant to Environmental Law, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change; and (iv) neither the Company nor any of its subsidiaries is subject to any pending or, to the Companys knowledge, threatened proceeding under Environmental Law to which a governmental authority is a party and which is reasonably likely to result in monetary sanctions of $100,000 or more.
ff) ERISA Compliance. The Company and its subsidiaries and each employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, ERISA )) established or maintained by the Company, its subsidiaries or their ERISA Affiliates (as defined below) are in compliance in all material respects with ERISA. ERISA Affiliate means, with respect to the Company or a subsidiary, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the Internal Revenue Code ), of which the Company or such subsidiary is a member. No reportable event (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any employee benefit plan established or maintained by the Company, its
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subsidiaries or, except as would not reasonably be expected to result in material liability to the Company or any of its subsidiaries, any of their ERISA Affiliates. No employee benefit plan established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if such employee benefit plan were terminated, would have any material amount of unfunded benefit liabilities (as defined under ERISA). Neither the Company, its subsidiaries nor, except as would not reasonably be expected to result in material liability to the Company or any of its subsidiaries, any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any employee benefit plan, (ii) Sections 412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the Internal Revenue Code with respect to the excise tax imposed thereunder. Each employee benefit plan established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service and nothing has occurred, whether by action or failure to act, which is reasonably likely to cause disqualification of any such employee benefit plan under Section 401(a) of the Internal Revenue Code.
gg) Sarbanes-Oxley Compliance . The Company is in compliance, and will comply, in all material respects with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
hh) Companys Accounting System. The Company and its subsidiaries maintain systems of internal control over financial reporting, as such term is defined in Rule 13a-15(f) under the Exchange Act, that comply with the requirements of the Exchange Act. Except as disclosed in the Disclosure Package and the Prospectus, since the end of the Companys most recent audited fiscal year, there has been (i) no material weakness in the Companys internal control over financial reporting (whether or not remediated) and (ii) no change in the Companys internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting.
ii) Internal Controls and Procedures. The Company maintains 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.
jj) Accuracy of Exhibits . There are no franchises, contracts or documents which are required to be described in the Registration Statement, the Disclosure Package, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits to the Registration Statement which have not been so described and filed as required.
kk) Merger . Nothing has come to the Companys attention that has caused it to believe that the Merger will not be consummated substantially in accordance with the terms and
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conditions of the Agreement and Plan of Merger, dated as of June 26, 2018, among Pinnacle, the Company and Patriot Merger Sub Inc. (the Merger Agreement ). To the knowledge of the Company, all representations and warranties made by Pinnacle in the Merger Agreement are true and correct in all material respects (or if qualified by materiality or a similar limitation, in all respects). The Merger Agreement has been duly authorized, executed and delivered by the Company and Patriot Merger Sub Inc., and to the knowledge of the Company, has been duly authorized, executed and delivered by Pinnacle.
Any certificate signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.
S ECTION 2. Purchase, Sale and Delivery of the Notes.
a) The Notes . The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Notes upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company (i) the aggregate principal amount of 2021 Notes set forth opposite their names on Schedule A at a purchase price of 99.685% of the principal amount of the 2021 Notes; (ii) the aggregate principal amount of 2024 Notes set forth opposite their names on Schedule A at a purchase price of 99.600% of the principal amount of the 2024 Notes; (iii) the aggregate principal amount of 2025 Notes set forth opposite their names on Schedule A at a purchase price of 99.314% of the principal amount of the 2025 Notes; (iv) the aggregate principal amount of 2028 Notes set forth opposite their names on Schedule A at a purchase price of 99.517% of the principal amount of the 2028 Notes; (v) the aggregate principal amount of the 2038 Notes set forth opposite their names on Schedule A at a purchase price of 98.708% of the principal amount of the 2038 Notes; (vi) the aggregate principal amount of the 2048 Notes set forth opposite their names on Schedule A at a purchase price of 98.623% of the principal amount of the 2048 Notes and (vii) the aggregate principal amount of the 2020 Floating Rate Notes set forth opposite their names on Schedule A at a purchase price of 99.850% of the principal amount of the 2020 Floating Rate Notes, in each case, payable on the Closing Date.
b) The Closing Date . Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Sidley Austin LLP, One South Dearborn Street, Chicago, Illinois 60603 (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on October 22, 2018, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the Closing Date ).
c) Public Offering of the Notes. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire transfer of immediately available funds to the order of the Company.
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It is understood that the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes that the Underwriters have agreed to purchase. The Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
e) Delivery of the Notes. The Company shall make one or more global certificates (collectively, the Global Securities ) representing the Notes available for inspection by the Representatives not later than 1:00 p.m., New York City time, on the business day preceding the Closing Date and, on or prior to the Closing Date, the Company shall deliver the Global Securities to the Depositary or to the Trustee, acting as custodian for the Depositary, as applicable. Delivery of the Notes to the Underwriters on the Closing Date shall be made through the facilities of the Depositary unless the Representatives shall otherwise instruct. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
S ECTION 3. Covenants o f the Company .
The Company covenants and agrees with each Underwriter as follows:
a) Compliance with Securities Regulations and Commission Requests . The Company, subject to Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will promptly notify the Representatives of (i) the effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information regarding the Preliminary Prospectus or the Prospectus, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings of the Preliminary Prospectus and the Prospectus necessary pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such document. The Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b) Filing of Amendments . During such period beginning on the date of this Agreement and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an underwriter or dealer, including in circumstances where such
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requirement may be satisfied pursuant to Rule 172 of the Securities Act (the Prospectus Delivery Period ), the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or any amendment or supplement to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object; provided, however , that with respect to any proposed amendment or supplement resulting solely from the incorporation by reference of any report to be filed under the Exchange Act, the Representatives shall be deemed to have consented to the filing or use of such report if they do not respond to the Company within 12 hours of being provided such report.
c) Delivery of Registration Statements . The Company will deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
d) Delivery of Prospectuses . The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus and any document incorporated by reference therein as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus and any document incorporated by reference therein as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws . The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus during the Prospectus Delivery Period. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the
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Representatives of any such event, development or condition and (2) promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Notes. The Company shall not be required to qualify to transact business or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold by it in the manner described under the caption Use of Proceeds in the Preliminary Prospectus and the Prospectus.
h) Depositary. The Company will cooperate with the Underwriters and use its best efforts to permit the Notes to be eligible for clearance and settlement through the facilities of the Depositary.
i) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company similar to the Notes or securities exchangeable for or convertible into debt securities similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
j) Final Term Sheet . The Company will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and attached as Exhibit A hereto, and will file such term sheet with the Commission pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the Final Term Sheet ). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
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k) Permitted Free Writing Prospectuses . The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a Permitted Free Writing Prospectus . The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering or included in the Preliminary Prospectus or the Prospectus, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(j).
l) Filing Fees . The Company agrees to pay the required Commission filing fees relating to the Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
m) No Manipulation of Price . The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
S ECTION 4. Payment of Expenses . The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes, (iii) all fees and expenses of the Companys counsel, independent public or certified public accountants and other advisors to the Company and Pinnacle, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v) all filing fees, reasonable attorneys fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or
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obtaining exemptions from the qualification or registration of) all or any part of the Notes for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a Blue Sky Survey or memorandum, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions (provided that the amount for such survey or memorandum shall not exceed $5,000), (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by FINRA of the terms of the sale of the Notes (provided that any fees of such counsel shall not exceed $5,000), (vii) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by the Depositary for book-entry transfer, (x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
S ECTION 5. Conditions of the Obligations of the Underwriters . The obligations of the Underwriters to purchase and pay for the Notes as provided herein on a several and not joint basis on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
a) Effectiveness of Registration Statement . The Registration Statement and any post-effective amendments thereto shall be effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendments thereto shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with Rule 424(b).
b) Accountants Comfort Letter . On the date hereof, the Representatives shall have received from KPMG LLP, independent 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 financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus, including Pro Formas contained in the Preliminary Prospectus and the Prospectus. On the date hereof, the Representatives shall have received from Deloitte & Touche LLP, independent public accountants for Pinnacle, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited financial statements and certain financial information contained or incorporated by reference in the Preliminary Prospectus and the Prospectus.
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c) Bring -down Comfort Letter . On the Closing Date, the Representatives shall have received from KPMG LLP, independent public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date. On the Closing Date, the Representatives shall have received from Deloitte & Touche LLP, independent public accountants for Pinnacle, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
d) Ratings Agency Change. For the period from and after the date of this Agreement and prior to or on the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any nationally recognized statistical rating organization as such term is defined for purposes of Section 3(a)(62) under the Exchange Act.
e) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have received the opinion of each of (i) Jones Day, counsel for the Company, dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives and (ii) Colleen Batcheler, Executive Vice President, General Counsel and Corporate Secretary of the Company, or any other Company attorney reasonably satisfactory to the Representatives, in form and substance reasonably satisfactory to the Representatives.
f) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall have received the opinion of Sidley Austin LLP, counsel for the Underwriters, dated as of such Closing Date, in form and substance reasonably satisfactory to the Representatives, with respect to such matters as may be reasonably requested by the Underwriters.
g) Officers Certificate. On the Closing Date, the Representatives shall have received a written certificate executed by the Chief Executive Officer, an Executive Vice President, or a Senior Vice President of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have been instituted or, to the knowledge of the Company, threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of the automatic shelf registration statement form;
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(iii) the representations and warranties of the Company set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date; and
(iv) the Company has complied in all material respects with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date.
h) Additional Documents. On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination.
S ECTION 6. Reimbursement of Underwriters Expenses . If this Agreement is terminated by the Representatives pursuant to Section 5 or 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves) severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Notes, including but not limited to reasonable fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
S ECTION 7. Effectiveness of this Agreement . This Agreement shall not become effective until the execution of this Agreement by the parties hereto.
S ECTION 8. Indemnification .
(a) Indemnification of the Underwriters . The Company agrees to indemnify and hold harmless each Underwriter, its directors, officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration
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Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Underwriter and each such director, officer, employee, agent and controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter or such director, officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however , that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof. The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company, its Directors and Officers . Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein; and to reimburse the Company, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company, or any
22
such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the only information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the third paragraph, the third sentence of the seventh paragraph and the eighth paragraph under the caption Underwriting (Conflict of Interest) in the Preliminary Prospectus and the Prospectus. The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures . Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise under the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by the Representatives and that all such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying partys election so to assume the defense of such action and approval by the indemnified party of counsel (which approval shall not be unreasonably withheld), the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
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(d) Settlements . The indemnifying party under this Section 8 shall not be liable for any settlement or compromise of, or consent to the entry of any judgment with respect to, any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. An indemnifying party will not, without the prior written consent of the indemnified parties (such consent not to be unreasonably withheld or delayed), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding asserted against an indemnified party in respect of which indemnification or contribution has been sought hereunder unless such settlement, compromise or consent: (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
S ECTION 9. Contribution . If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting commissions received by the Underwriters, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Notes as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
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The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company with the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
S ECTION 10. Default of One or More of the Several Underwriters . If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes, which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 8, 9 and 17 shall at all times be effective and shall survive such termination. In any such case, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
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S ECTION 11. Termination of this Agreement . Prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Companys securities shall have been suspended or limited by the Commission or the New York Stock Exchange, or trading in securities generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Notes in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any Material Adverse Change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
S ECTION 12. No Fiduciary Duty . The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, is an arms-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
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S ECTION 13. Representations and Indemnities to Survive Delivery . The respective indemnities, agreements, representations, warranties and other statements of the Company and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter, the Company, the officers or employees of the Company, or any person controlling the Company, as the case may be, or (B) acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes sold hereunder and any termination of this Agreement.
S ECTION 14. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10036
Attention: Registration Department
and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York, NY 10020
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Facsimile: (212) 901-7881
and
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attention: Investment Grade Syndicate Desk
Facsimile: (212) 834-6081
and
Mizuho Securities USA LLC
320 Park Avenue
New York, New York 10022
Attention: Debt Capital Markets
Facsimile: (212) 205-7812
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with a copy to:
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Attention: Brian J. Fahrney
Facsimile: (312) 853-7036
If to the Company:
Conagra Brands, Inc.
222 Merchandise Mart Plaza, Suite 1300
Chicago, IL 60654
Attention: General Counsel
with a copy to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Attention: Michael J. Solecki
Facsimile: (216) 579-0212
Any party hereto may change the address for receipt of communications by giving written notice to the others.
S ECTION 15. Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the directors, officers, employees, agents and controlling persons referred to in Sections 8 and 9, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term successors shall not include any purchaser of the Notes as such from any of the Underwriters merely by reason of such purchase.
S ECTION 16. Partial Unenforceability . The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
S ECTION 17. Governing Law Provisions . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
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Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, or the courts of the State of New York in each case located in the City and County of New York, Borough of Manhattan (collectively, the Specified Courts ), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such partys address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
S ECTION 18. General Provisions . This Agreement may be executed by facsimile or other electronic transmission and in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
[Signatures follow on next page]
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, | ||||
CONAGRA BRANDS, INC. | ||||
By: |
/s/ Johan Nystedt |
|||
Name: | Johan Nystedt | |||
Title: | Vice President, Treasurer |
Signature Page to the Underwriting Agreement
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.
GOLDMAN SACHS & CO. LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES LLC
MIZUHO SECURITIES USA LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By: | Goldman Sachs & Co. LLC | |||
By: |
/s/ Adam Greene |
|||
Name: | Adam Greene | |||
Title: | Managing Director | |||
By: |
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
|||
By: |
/s/ Sandeep Chawla |
|||
Name: | Sandeep Chawla | |||
Title: | Managing Director | |||
By: | J.P. Morgan Securities LLC | |||
By: |
/s/ Som Bhattacharyya |
|||
Name: | Som Bhattacharyya | |||
Title: | Executive Director | |||
By: | Mizuho Securities USA LLC | |||
By: |
/s/ Joseph Santaniello |
|||
Name: | Joseph Santaniello | |||
Title: | Vice President |
Signature Page to the Underwriting Agreement
SCHEDULE A
Underwriters |
Aggregate Principal
Amount of 2021 Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 300,000,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
128,000,000 | |||
J.P. Morgan Securities LLC |
128,000,000 | |||
Mizuho Securities USA LLC |
128,000,000 | |||
MUFG Securities Americas Inc. |
90,000,000 | |||
Wells Fargo Securities, LLC |
90,000,000 | |||
Barclays Capital Inc. |
60,000,000 | |||
HSBC Securities (USA) Inc. |
60,000,000 | |||
Scotia Capital (USA) Inc. |
60,000,000 | |||
U.S. Bancorp Investments, Inc. |
60,000,000 | |||
BNP Paribas Securities Corp. |
24,000,000 | |||
Rabo Securities USA, Inc. |
24,000,000 | |||
RBC Capital Markets, LLC |
24,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
24,000,000 | |||
|
|
|||
Total |
$ | 1,200,000,000 | ||
Underwriters |
Aggregate Principal
Amount of 2024 Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 250,001,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
106,667,000 | |||
J.P. Morgan Securities LLC |
106,666,000 | |||
Mizuho Securities USA LLC |
106,666,000 | |||
MUFG Securities Americas Inc. |
75,000,000 | |||
Wells Fargo Securities, LLC |
75,000,000 | |||
Barclays Capital Inc. |
50,000,000 | |||
HSBC Securities (USA) Inc. |
50,000,000 | |||
Scotia Capital (USA) Inc. |
50,000,000 | |||
U.S. Bancorp Investments, Inc. |
50,000,000 | |||
BNP Paribas Securities Corp. |
20,000,000 | |||
Rabo Securities USA, Inc. |
20,000,000 | |||
RBC Capital Markets, LLC |
20,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
20,000,000 | |||
|
|
|||
Total |
$ | 1,000,000,000 |
Sch-A
Underwriters |
Aggregate Principal
Amount of 2025 Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 250,001,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
106,666,000 | |||
J.P. Morgan Securities LLC |
106,667,000 | |||
Mizuho Securities USA LLC |
106,666,000 | |||
MUFG Securities Americas Inc. |
75,000,000 | |||
Wells Fargo Securities, LLC |
75,000,000 | |||
Barclays Capital Inc. |
50,000,000 | |||
HSBC Securities (USA) Inc. |
50,000,000 | |||
Scotia Capital (USA) Inc. |
50,000,000 | |||
U.S. Bancorp Investments, Inc. |
50,000,000 | |||
BNP Paribas Securities Corp. |
20,000,000 | |||
Rabo Securities USA, Inc. |
20,000,000 | |||
RBC Capital Markets, LLC |
20,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
20,000,000 | |||
|
|
|||
Total |
$ | 1,000,000,000 | ||
Underwriters |
Aggregate Principal
Amount of 2028 Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 325,001,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
138,666,000 | |||
J.P. Morgan Securities LLC |
138,666,000 | |||
Mizuho Securities USA LLC |
138,667,000 | |||
MUFG Securities Americas Inc. |
97,500,000 | |||
Wells Fargo Securities, LLC |
97,500,000 | |||
Barclays Capital Inc. |
65,000,000 | |||
HSBC Securities (USA) Inc. |
65,000,000 | |||
Scotia Capital (USA) Inc. |
65,000,000 | |||
U.S. Bancorp Investments, Inc. |
65,000,000 | |||
BNP Paribas Securities Corp. |
26,000,000 | |||
Rabo Securities USA, Inc. |
26,000,000 | |||
RBC Capital Markets, LLC |
26,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
26,000,000 | |||
|
|
|||
Total |
$ | 1,300,000,000 |
Sch-A
Underwriters |
Aggregate Principal
Amount of 2038 Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 250,001,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
106,667,000 | |||
J.P. Morgan Securities LLC |
106,666,000 | |||
Mizuho Securities USA LLC |
106,666,000 | |||
MUFG Securities Americas Inc. |
75,000,000 | |||
Wells Fargo Securities, LLC |
75,000,000 | |||
Barclays Capital Inc. |
50,000,000 | |||
HSBC Securities (USA) Inc. |
50,000,000 | |||
Scotia Capital (USA) Inc. |
50,000,000 | |||
U.S. Bancorp Investments, Inc. |
50,000,000 | |||
BNP Paribas Securities Corp. |
20,000,000 | |||
Rabo Securities USA, Inc. |
20,000,000 | |||
RBC Capital Markets, LLC |
20,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
20,000,000 | |||
|
|
|||
Total |
$ | 1,000,000,000 | ||
Underwriters |
Aggregate Principal
Amount of 2048 Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 250,001,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
106,666,000 | |||
J.P. Morgan Securities LLC |
106,667,000 | |||
Mizuho Securities USA LLC |
106,666,000 | |||
MUFG Securities Americas Inc. |
75,000,000 | |||
Wells Fargo Securities, LLC |
75,000,000 | |||
Barclays Capital Inc. |
50,000,000 | |||
HSBC Securities (USA) Inc. |
50,000,000 | |||
Scotia Capital (USA) Inc. |
50,000,000 | |||
U.S. Bancorp Investments, Inc. |
50,000,000 | |||
BNP Paribas Securities Corp. |
20,000,000 | |||
Rabo Securities USA, Inc. |
20,000,000 | |||
RBC Capital Markets, LLC |
20,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
20,000,000 | |||
|
|
|||
Total |
$ | 1,000,000,000 |
Sch-A
Underwriters |
Aggregate Principal
Amount of 2020 Floating Rate Notes to be Purchased |
|||
Goldman Sachs & Co. LLC |
$ | 131,250,000 | ||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
56,000,000 | |||
J.P. Morgan Securities LLC |
56,000,000 | |||
Mizuho Securities USA LLC |
56,000,000 | |||
MUFG Securities Americas Inc. |
39,375,000 | |||
Wells Fargo Securities, LLC |
39,375,000 | |||
Barclays Capital Inc. |
26,250,000 | |||
HSBC Securities (USA) Inc. |
26,250,000 | |||
Scotia Capital (USA) Inc. |
26,250,000 | |||
U.S. Bancorp Investments, Inc. |
26,250,000 | |||
BNP Paribas Securities Corp. |
10,500,000 | |||
Rabo Securities USA, Inc. |
10,500,000 | |||
RBC Capital Markets, LLC |
10,500,000 | |||
SunTrust Robinson Humphrey, Inc. |
10,500,000 | |||
|
|
|||
Total |
$ | 525,000,000 |
Sch-A
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated October 15, 2018
Net road show posted October 9, 2018
Annex-1
EXHIBIT A
CONAGRA BRANDS, INC.
Pricing Term Sheet
$525,000,000 Floating Rate Notes due 2020
$1,200,000,000 3.800% Senior Notes due 2021
$1,000,000,000 4.300% Senior Notes due 2024
$1,000,000,000 4.600% Senior Notes due 2025
$1,300,000,000 4.850% Senior Notes due 2028
$1,000,000,000 5.300% Senior Notes due 2038
$1,000,000,000 5.400% Senior Notes due 2048
Issuer: | Conagra Brands, Inc. | |
Securities: |
Floating Rate Notes due 2020 3.800% Senior Notes due 2021 4.300% Senior Notes due 2024 4.600% Senior Notes due 2025 4.850% Senior Notes due 2028 5.300% Senior Notes due 2038 5.400% Senior Notes due 2048 |
|
Principal Amount: |
2020 Floating Rate Notes: $525,000,000 2021 Notes: $1,200,000,000 2024 Notes: $1,000,000,000 2025 Notes: $1,000,000,000 2028 Notes: $1,300,000,000 2038 Notes: $1,000,000,000 2048 Notes: $1,000,000,000 |
|
Maturity: |
2020 Floating Rate Notes: October 22, 2020 2021 Notes: October 22, 2021 2024 Notes: May 1, 2024 2025 Notes: November 1, 2025 2028 Notes: November 1, 2028 2038 Notes: November 1, 2038 2048 Notes: November 1, 2048 |
|
Coupon (Interest Rate): |
2020 Floating Rate Notes: Three month LIBOR plus 0.75% 2021 Notes: 3.800% 2024 Notes: 4.300% 2025 Notes: 4.600% 2028 Notes: 4.850% 2038 Notes: 5.300% 2048 Notes: 5.400% |
|
Yield to Maturity: |
2020 Floating Rate Notes: N/A 2021 Notes: 3.841% 2024 Notes: 4.310% 2025 Notes: 4.648% 2028 Notes: 4.854% 2038 Notes: 5.334% 2048 Notes: 5.434% |
Exh. A-1
Spread to Benchmark Treasury: |
2020 Floating Rate Notes: N/A 2021 Notes: +90 bps 2024 Notes: +130 bps 2025 Notes: +155 bps 2028 Notes: +170 bps 2038 Notes: +200 bps 2048 Notes: +210 bps |
|
Benchmark Treasury: |
2020 Floating Rate Notes: N/A 2021 Notes: UST 2.875% due October 15, 2021 2024 Notes: UST 2.875% due September 30, 2023 2025 Notes: UST 3.000% due September 30, 2025 2028 Notes: UST 2.875% due August 15, 2028 2038 Notes: UST 3.125% due May 15, 2048 2048 Notes: UST 3.125% due May 15, 2048 |
|
Benchmark Treasury Price / Yield: |
2020 Floating Rate Notes: N/A 2021 Notes: 99-26 / 2.941% 2024 Notes: 99-12 1 ⁄ 4 / 3.010% 2025 Notes: 99-12+ / 3.098% 2028 Notes: 97-21 / 3.154% 2038 Notes: 96-02+ / 3.334% 2048 Notes: 96-02+ / 3.334% |
|
Make-Whole Call: |
2020 Floating Rate Notes: N/A 2021 Notes: T + 15 bps 2024 Notes: T + 20 bps 2025 Notes: T + 25 bps 2028 Notes: T + 30 bps 2038 Notes: T + 30 bps 2048 Notes: T + 35 bps |
|
Par Call Date: |
2020 Floating Rate Notes: October 22, 2019 2021 Notes: N/A 2024 Notes: April 1, 2024 2025 Notes: September 1, 2025 2028 Notes: August 1, 2028 2038 Notes: May 1, 2038 2048 Notes: May 1, 2048 |
|
Special Mandatory Redemption: | If (i) the merger (the Merger) pursuant to the Agreement and Plan of Merger, dated as of June 26, 2018, by and among Pinnacle Foods Inc., Conagra Brands, Inc. and Patriot Merger Sub Inc. (the Merger Agreement), is not consummated on or prior to April 1, 2019, or (ii) prior to April 1, 2019, the Merger Agreement is terminated, other than in connection with the consummation of the Merger, Conagra Brands, Inc. will be obligated to redeem all of the 2020 Floating Rate Notes, the 2021 Notes, the 2024 Notes, the 2025 Notes, the 2028 Notes and the 2038 Notes (the Special Mandatory Redemption Notes) on the special mandatory redemption date at a redemption price, equal to 101% of the aggregate principal amount of the applicable Special Mandatory Redemption Notes, plus accrued and unpaid interest to, but not including, the special mandatory redemption date. The 2048 Notes are not subject to the special mandatory redemption and will remain outstanding even if Conagra Brands, Inc. does not consummate the Merger, unless otherwise redeemed or repurchased. |
Exh. A-2
Interest Payment Dates: |
2020 Floating Rate Notes: January 22, April 22, July 22 and October 22, commencing January 22, 2019 2021 Notes: April 22 and October 22, commencing April 22, 2019 2024 Notes: May 1 and November 1, commencing May 1, 2019 2025 Notes: May 1 and November 1, commencing May 1, 2019 2028 Notes: May 1 and November 1, commencing May 1, 2019 2038 Notes: May 1 and November 1, commencing May 1, 2019 2048 Notes: May 1 and November 1, commencing May 1, 2019 |
|
Price to Public: |
2020 Floating Rate Notes: 100.000% of the aggregate principal amount 2021 Notes: 99.885% of the aggregate principal amount 2024 Notes: 99.950% of the aggregate principal amount 2025 Notes: 99.714% of the aggregate principal amount 2028 Notes: 99.967% of the aggregate principal amount 2038 Notes: 99.583% of the aggregate principal amount 2048 Notes: 99.498% of the aggregate principal amount |
|
Trade Date: | October 15, 2018 | |
Settlement Date: | October 22, 2018 (T+5) | |
CUSIP / ISIN: |
2020 Floating Rate Notes: 205887 BX9 / US205887BX94 2021 Notes: 205887 BZ4 / US205887BZ43 2024 Notes: 205887 CA8 / US205887CA82 2025 Notes: 205887 CB6 / US205887CB65 2028 Notes: 205887 CC4 / US205887CC49 2038 Notes: 205887 CD2 / US205887CD22 2048 Notes: 205887 CE0 / US205887CE05 |
|
Change of Control Offer: | If Conagra Brands, Inc. experiences a Change of Control Triggering Event, it will be required to offer to purchase each series of notes at a purchase price equal to 101% of their principal amount, plus accrued and unpaid interest to, but not including, the date of purchase. | |
Joint Book-Running Managers: |
Goldman Sachs & Co. LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated J.P. Morgan Securities LLC Mizuho Securities USA LLC |
|
Senior Co-Managers: |
MUFG Securities Americas Inc. Wells Fargo Securities, LLC |
|
Co-Managers: |
Barclays Capital Inc. HSBC Securities (USA) Inc. Scotia Capital (USA) Inc. U.S. Bancorp Investments, Inc. BNP Paribas Securities Corp. Rabo Securities USA, Inc. RBC Capital Markets, LLC SunTrust Robinson Humphrey, Inc. |
*Note: |
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
Exh. A-3
The issuer has filed a registration statement (including a prospectus, as supplemented) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement (as supplemented) 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 website 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 contacting the issuer at 1-312-549-5000 or by contacting Goldman Sachs & Co. LLC, Prospectus Department, 200 West Street, New York, NY 10282, or by calling 1-866-471-2526, facsimile: 212-902-9316 or emailing Prospectus-ny@ny.email.gs.com; BofA Merrill Lynch, NC1-004-03-43, 200 North College Street, 3rd Floor, Charlotte, North Carolina 28255-0001, Attention: Prospectus Department, or by emailing dg.prospectus_requests@baml.com; J.P. Morgan Securities LLC, c/o Broadridge Financial Solutions, Attention: Prospectus Department, 1155 Long Island Avenue, Edgewood, NY 11717, or by calling 1-212-834-4533 or Mizuho Securities USA LLC, 320 Park Avenue, New York, NY 10022, Attention: Debt Capital Markets, or by calling 1-866-271-7403.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers were automatically generated as a result of this communication being sent via email or another communication system.
Exh. A-4
Exhibit 4.2
SECOND SUPPLEMENTAL INDENTURE
This Second Supplemental Indenture, dated as of October 22, 2018 (this Second Supplemental Indenture ), is entered into by and between Conagra Brands, Inc., a Delaware corporation (the Company ), and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (the Trustee ).
WITNESSETH
WHEREAS, pursuant to the Indenture, dated as of October 12, 2017, by and between the Company and the Trustee (the Base Indenture ), the Company may from time to time issue and sell notes or other debt instruments in one or more Series;
WHEREAS, Section 2.01, Section 2.02 and Section 9.01(f) of the Base Indenture provide that the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to the Base Indenture, without the consent of any Holders, to, among other things, establish the form or terms of notes or other debt instruments of any Series as permitted by the Base Indenture;
WHEREAS, the Company desires to establish:
(i) |
a Series of Notes entitled Floating Rate Notes due 2020, limited initially to $525,000,000 in aggregate principal amount (the 2020 Floating Rate Notes ); |
(ii) |
a Series of Notes entitled 3.800% Senior Notes due 2021, limited initially to $1,200,000,000 in aggregate principal amount (the 2021 Notes ); |
(iii) |
a Series of Notes entitled 4.300% Senior Notes due 2024, limited initially to $1,000,000,000 in aggregate principal amount (the 2024 Notes ); |
(iv) |
a Series of Notes entitled 4.600% Senior Notes due 2025, limited initially to $1,000,000,000 in aggregate principal amount (the 2025 Notes ); |
(v) |
a Series of Notes entitled 4.850% Senior Notes due 2028, limited initially to $1,300,000,000 in aggregate principal amount (the 2028 Notes ); |
(vi) |
a Series of Notes entitled 5.300% Senior Notes due 2038, limited initially to $1,000,000,000 in aggregate principal amount (the 2038 Notes ); and |
(vii) |
a Series of Notes entitled 5.400% Senior Notes due 2048, limited initially to $1,000,000,000 in aggregate principal amount (the 2048 Notes , and, together with the 2021 Notes, the 2024 Notes, the 2025 Notes, the 2028 Notes and the 2038 Notes, the Fixed Rate Notes ), |
and to provide the terms and conditions upon which the 2020 Floating Rate Notes and the Fixed Rate Notes (collectively, the Notes ) are to be authenticated, issued and delivered;
WHEREAS, the Notes constitute separate Series of Notes to be issued under the Base Indenture, as supplemented by this Second Supplemental Indenture (as so supplemented and as may be further supplemented or amended with respect to the Notes, the Indenture ), and are subject to the terms contained therein and herein; and
WHEREAS, all acts and things necessary to make the Notes, when executed by an Officer of the Company and authenticated and delivered by or on behalf of the Trustee as provided in the Indenture, the valid, binding and legal obligations of the Company, and to make this Second Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed, and the execution of the Indenture and the issuance hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, in order to declare the terms and conditions upon which the Notes are authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the benefit of each other and for the equal and ratable benefit of the Holders from time to time of the Notes, as follows:
Section 1. Definitions . Capitalized terms used in this Second Supplemental Indenture and not defined herein shall have the respective meanings given to such terms in the Indenture.
Adjustments has the meaning set forth in in the definition of LIBOR.
Alternative Rate has the meaning set forth in the definition of LIBOR.
Attributable Debt means, as of any particular time, the present value, discounted at the Composite Rate, of the obligation of a lessee for rental payment during the remaining term of any lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended).
Capital Stock means the capital stock of every class whether now or hereafter authorized, regardless of whether such capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
Change of Control means the occurrence of any of the following: (a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the Companys assets and the assets of its Subsidiaries, taken as a whole, to any person (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its Subsidiaries; (b) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person (as that term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its Subsidiaries, becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than fifty percent (50%) of the Companys then outstanding Voting Stock or other Voting Stock into
2
which its Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (c) the first day on which a majority of the members of the Companys Board of Directors are not Continuing Directors; or (d) the adoption of a plan relating to the Companys liquidation or dissolution; provided, however , that a transaction shall not be considered to be a Change of Control if (i) the Company becomes a direct or indirect wholly-owned Subsidiary of a holding company and (ii)(A) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Companys Voting Stock immediately prior to that transaction or (B) immediately following that transaction, no person is the beneficial owner, directly or indirectly, of more than fifty percent (50%) of the Voting Stock of such holding company.
Change of Control Triggering Event means the occurrence of both a Change of Control and a Rating Event; provided , however , that no Change of Control Triggering Event shall be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
Comparable Treasury Issue means the United States Treasury security or securities selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the applicable Series of 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 the applicable Series of Notes being redeemed.
Comparable Treasury Price means, with respect to any redemption date, (a) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (b) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations so received.
Composite Rate means, at any time, the rate of interest, per annum, compounded semiannually, equal to the sum of the rates of interest borne by the Notes of each Series (as specified on the face of the Notes of each Series, provided, that , in the case of the Notes with variable rates of interest, the interest rate to be used in calculating the Composite Rate shall be the interest rate applicable to such Notes at the beginning of the year in which the Composite Rate is being determined) multiplied, in the case of each Series of Notes, by the percentage of the aggregate principal amount of the Notes of all Series outstanding represented by the outstanding Notes of such Series.
Consolidated Net Tangible Assets means the Net Tangible Assets of the Company and its Consolidated Subsidiaries consolidated in accordance with generally accepted accounting principles and as provided in the definition of Net Tangible Assets. In determining Consolidated Net Tangible Assets, minority interests in unconsolidated subsidiaries shall be included.
3
Consolidated Subsidiary and Consolidated Subsidiaries means Subsidiaries the accounts of which are consolidated with those of the Company in the preparation, in accordance with generally accepted accounting principles, of its consolidated financial statements.
Continuing Directors means, as of any date of determination, any member of the Companys Board of Directors who: (a) was a member of such Board of Directors on the first date that any of the Notes were issued; or (b) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of a proxy statement in which such member was named as a nominee for election as a director).
Fitch means Fitch Ratings, Inc. and its successors.
Funded Indebtedness means, as used in reference to any corporation, all Indebtedness of such corporation which would, in accordance with generally accepted accounting principles, be classified as funded debt, but in any event including all Indebtedness, whether secured or unsecured, of such corporation having a final maturity (or renewable or extendable at the option of such corporation for a period ending) more than one year after the date as of which Funded Indebtedness is to be determined.
Indebtedness means any and all obligations of a corporation for money borrowed which in accordance with generally accepted accounting principles would be reflected on the balance sheet of such corporation as a liability on the date as of which Indebtedness is to be determined. For the purpose of computing the amount of any Funded Indebtedness or other Indebtedness of any corporation, there shall be excluded all Indebtedness of such corporation for the payment or redemption or satisfaction of which money or securities (or evidences of such Indebtedness, if permitted under the terms of the instrument creating such Indebtedness) in the necessary amount shall have been deposited in trust with the proper depositary, whether upon or prior to the maturity or the date fixed for redemption of such Indebtedness; and, in any instance where Indebtedness is so excluded, for the purpose of computing the assets of such corporation there shall be excluded the money, securities or evidences of Indebtedness deposited by such corporation in trust for the purpose of paying or satisfying such Indebtedness.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating categories of Moodys), a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P) and a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch).
LIBOR will be determined by the calculation agent in accordance with the following provisions:
(1) With respect to any interest determination date, LIBOR will be the rate for deposits in Dollars having a maturity of three months commencing on the first day of the
4
applicable interest period that appears on Reuters Screen LIBOR01 Page, or, if on such interest determination date, the three-month LIBOR does not appear or is not available on Reuters Screen LIBOR01 Page, such other service as may be nominated by the ICE Benchmark Administration Limited for the purpose of displaying London interbank offered rates for Dollar deposits of major banks, as of 11:00 a.m., London time, on that interest determination date. If no rate appears, then LIBOR, in respect of that interest determination date, will be determined in accordance with the provisions described in clause (2) below.
(2) With respect to an interest determination date on which no rate appears on either of the pages specified in clause (1) above, the Company will request the principal London offices of each of four major reference banks in the London interbank market, as selected by the Company (with appropriate contact information provided to the calculation agent), to provide the calculation agent with its offered quotation for deposits in Dollars for the period of three months, commencing on the first day of the applicable interest period, to prime banks in the London interbank market at approximately 11:00 a.m., London time, on that interest determination date and in a principal amount that is representative for a single transaction in Dollars in that market at that time. If at least two quotations are provided to the calculation agent, then LIBOR on that interest determination date will be the arithmetic mean of those quotations. If fewer than two quotations are provided to the calculation agent, then LIBOR on the interest determination date will be the arithmetic mean of the rates quoted at approximately 11:00 a.m., in the City of New York, on the interest determination date by three major banks in the City of New York selected by the Company for loans in Dollars to leading European banks, having a three-month maturity and in a principal amount that is representative for a single transaction in Dollars in that market at that time; provided, however, that if the banks selected by the Company are not providing quotations in the manner described by this sentence, LIBOR will be the same as the rate determined for the immediately preceding interest reset date or if there is no immediately preceding interest reset date, LIBOR will be the same as the rate determined for the initial interest period.
(3) Notwithstanding clause (2) above, if the Company or the calculation agent determines that LIBOR has been permanently discontinued, the calculation agent will use, in consultation with the Company, as a substitute for LIBOR and for each future interest determination date, a reasonably comparable successor or alternative interbank reference rate for deposits in Dollars (having a three-month maturity and in a principal amount that is representative for a single transaction in Dollars) that is, at such time, consistent with accepted market practice for floating rate notes reasonably similar to the 2020 Floating Rate Notes, which may include a reasonably comparable alternative reference rate selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee or working group thereof) (the Alternative Rate ). As part of such substitution, the calculation agent will, in consultation with the Company, make such adjustments ( Adjustments ) to the Alternative Rate or the spread thereon, as well as the Business Day convention, interest determination dates and related provisions and definitions, in each case that are consistent with accepted market practice for the use of such Alternative Rate for debt obligations such as the 2020 Floating Rate Notes. If the calculation agent determines, following consultation with the Company, that there is no clear market consensus as to whether any rate has replaced LIBOR in customary market usage, or what Adjustments are appropriate (including without limitation the spread), (i) the Trustee shall
5
have the right to resign as calculation agent in respect of the 2020 Floating Rate Notes, as provided in the applicable calculation agent agreement between the Company and the Trustee, and (ii) the Company will appoint, in the Companys sole discretion, a new calculation agent to replace the Trustee, solely in its role as calculation agent with respect to the 2020 Floating Rate Notes to determine the Alternative Rate and any Adjustments thereon in consultation with the Company in accordance with the provisions of this clause (3). The determinations of such successor calculation agent shall be binding on the Company, the Trustee and the Holders of the 2020 Floating Rate Notes. Until such time as an Alternative Rate or the Adjustments have been determined in accordance with this clause (3), LIBOR will be equal to such rate on the interest determination date when LIBOR was last available on the Reuters Screen LIBOR01 Page, as determined by the calculation agent.
Lien means any mortgage, pledge, security interest or other lien or encumbrance.
London Banking Day means any day in which dealings in Dollars are transacted or, with respect to any future date, are expected to be transacted in the London inter-bank market.
Merger means the merger with Pinnacle Foods Inc., a Delaware corporation, whereby a wholly-owned Subsidiary of the Company will merge with and into Pinnacle Foods Inc., with Pinnacle Foods Inc. surviving as the Companys wholly-owned Subsidiary.
Merger Agreement means the Agreement and Plan of Merger, dated June 26, 2018, by and among the Company, Pinnacle Foods Inc. and a wholly-owned subsidiary of the Company.
Moodys means Moodys Investors Service, Inc., and its successors.
Net Tangible Assets means, as used in reference to the assets of any corporation, the total amount of assets of such corporation, both real and personal (exclusive of licenses, patents, patent applications, copyrights, trademarks, trade names, good will, experimental or organizational expense and other like intangibles, treasury stock and unamortized discount and expense) less the sum of:
(1) all reserves for depletion, depreciation, obsolescence and/or amortization of its properties (other than those excluded as hereinabove provided) as shown by the books of such corporation (other than general contingency reserves, reserves representing mere appropriations of surplus and reserves to the extent related to intangible assets which have been excluded in calculating Net Tangible Assets as above provided), and
(2) all Indebtedness and other current liabilities of such corporation other than (a) Funded Indebtedness, (b) deferred income taxes, (c) reserves which have been deducted pursuant to the preceding clause (1), (d) general contingency reserves and reserves representing mere appropriations of surplus and (e) liabilities to the extent related to intangible assets which have been excluded in calculating Net Tangible Assets as above provided.
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The definition of Net Tangible Assets excludes licenses, patents, patent applications, copyrights, trademarks, trade names, goodwill, experimental or organizational expense and other like intangibles, treasury stock and unamortized discount and expense.
Primary Treasury Dealer means a primary United States Government securities dealer in the City of New York.
Principal Property means, as of any date, any building, structure or other facility together with the land upon which it is erected and fixtures comprising a part thereof, used primarily for manufacturing, processing or production, in each case located in the United States, and owned or leased or to be owned or leased by the Company or any Consolidated Subsidiary, in each case the net book value of which as of such date exceeds two percent (2%) of Consolidated Net Tangible Assets, as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of the Company, other than any such land, building, structure or other facility or portion thereof which, in the opinion of the Board of Directors, is not of material importance to the business conducted by the Company and its Consolidated Subsidiaries, considered as one enterprise.
Rating Agencies means: (a) each of Moodys, S&P and Fitch; and (b) if any of Moodys, S&P or Fitch ceases to rate the applicable Series of Notes or fails to make a rating of such Notes publicly available for reasons outside of the Companys control, a nationally recognized statistical rating organization as such term is defined for purposes of Section 3(a)(62) under the Exchange Act that is selected by the Company (as certified by a Board Resolution) as a replacement agency for Moodys, S&P or Fitch, or each of them, as the case may be.
Rating Event means, with respect to any Series of Notes, (a) the rating of such Notes is lowered by any two of the three Rating Agencies on any day during the period (the Trigger Period ) commencing on the earlier of (i) the occurrence of a Change of Control and (ii) the first public notice of the Companys intention to effect a Change of Control, and ending sixty (60) days following consummation of such Change of Control (which period shall be extended so long as the rating of such Series of Notes is under publicly announced consideration for possible downgrade by any two of the three Rating Agencies), and (b) such Notes are rated below Investment Grade by each of the Rating Agencies on any day during the Trigger Period; provided that a Rating Event shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Company that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).
Reference Treasury Dealer means each of Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Mizuho Securities USA LLC and their respective successors and at least two other Primary Treasury Dealers selected by the Company; provided, however, that if any of the Reference Treasury Dealers shall cease to be a Primary Treasury Dealer, the Company shall substitute another Primary Treasury Dealer.
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Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York time, on the third Business Day preceding such redemption date.
Reuters Screen LIBOR01 Page means the display designated on page LIBOR01 on Reuters (or such other page as may replace the LIBOR01 page on that service or any successor service for the purpose of displaying London interbank offered rates for Dollar deposits of major banks).
S&P means S&P Global Ratings, a division of S&P Global Inc., and its successors.
Sale and Lease-Back Transaction has the meaning set forth in Section 12.
Special Mandatory Redemption Date has the meaning set forth in Section 9 .
Special Mandatory Redemption Event has the meaning set forth in Section 9 .
Special Mandatory Redemption Notes means the 2020 Floating Rate Notes, the 2021 Notes, the 2024 Notes, the 2025 Notes, the 2028 Notes and the 2038 Notes.
Special Mandatory Redemption Notice Date has the meaning set forth in Section 9 .
Special Mandatory Redemption Price has the meaning set forth in Section 9 .
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated on the third Business Day preceding the redemption date, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date.
Trigger Period has the meaning set forth in the definition of Rating Event.
Voting Stock means, with respect to any specified Person 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 2. Creation and Authorization of the Series of 2020 Floating Rate Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the Floating Rate Notes due 2020.
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(b) The 2020 Floating Rate Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2020 Floating Rate Notes shall be substantially in the form attached hereto as Exhibit A , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2020 Floating Rate Notes are to be issued initially in an aggregate principal amount of $525,000,000; provided, however , that the aggregate principal amount of the 2020 Floating Rate Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2020 Floating Rate Notes.
(e) The initial offering price to the public of the 2020 Floating Rate Notes shall be 100.000% of the principal amount of the 2020 Floating Rate Notes.
(f) The 2020 Floating Rate Notes will mature on October 22, 2020, subject to the provisions of the Indenture relating to acceleration.
(g) The interest rate for the 2020 Floating Rate Notes for a particular interest period will be a per annum rate equal to the three-month LIBOR as determined on the applicable interest determination date by the calculation agent appointed by the Company, which initially will be the Trustee, plus 0.750%. The interest rate on the 2020 Floating Rate Notes will be reset on the first day of each interest period other than the initial interest period, each such date an interest reset date. An interest period is the period commencing on an interest payment date (or, in the case of the initial interest period, commencing on the date that the 2020 Floating Rate Notes are issued) and ending on the day immediately preceding the next interest payment date or the maturity date, as the case may be. The interest determination date for an interest period will be the second London Banking Day preceding the first day of such interest period.
(h) The interest rate on the 2020 Floating Rate Notes will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States laws of general application. Additionally, the interest rate on the 2020 Floating Rate Notes will in no event be lower than zero.
(i) The calculation agent will, upon the request of any Holder of the 2020 Floating Rate Notes, provide the interest rate then in effect with respect to the 2020 Floating Rate Notes. All calculations made by the calculation agent in the absence of manifest error will be conclusive for all purposes and binding on the Company and the Holders of the 2020 Floating Rate Notes.
(j) The initial interest period will be October 22, 2018 through, but not including, January 22, 2019. The initial interest determination date for the initial interest period will be October 18, 2018.
(k) Interest on the 2020 Floating Rate Notes will be payable quarterly on January 22, April 22, July 22 and October 22, beginning on January 22, 2019, to the Persons in whose names the 2020 Floating Rate Notes are registered at the close of business on each January 7, April 7, July 7 and October 7 preceding the applicable interest payment date, whether or not a Business Day.
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(l) The amount of interest payable on the 2020 Floating Rate Notes will be computed on the basis of the actual number of days in each quarterly interest period and a 360-day year. In the event that any day (other than the maturity date) on which interest is payable on the 2020 Floating Rate Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day and interest will accrue to, but not including, the date interest is paid; provided that if such next succeeding Business Day does not occur in the calendar month of the relevant interest payment date, payment will be made on the Business Day immediately preceding the interest payment date.
(m) All percentages resulting from any of the above calculations will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point, with five one-millionths of a percentage point being rounded upwards (e.g., 8.986865% (or 0.08986865) being rounded to 8.98687% (or 0.0898687)) and all Dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent being rounded upwards).
(n) Principal and interest on the 2020 Floating Rate Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
(o) The Company will be required to offer to purchase all of the 2020 Floating Rate Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10 .
(p) On or after October 22, 2019, the Company will have the right to redeem the 2020 Floating Rate Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2020 Floating Rate Notes to be redeemed plus accrued interest on the 2020 Floating Rate Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2020 Floating Rate Notes to be redeemed.
(q) The 2020 Floating Rate Notes will not be subject to, nor have the benefit of, any sinking fund.
(r) The 2020 Floating Rate Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(s) The 2020 Floating Rate Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(t) The 2020 Floating Rate Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2020 Floating Rate Notes may exchange such interests in accordance with the Indenture and the terms of the 2020 Floating Rate Notes.
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(u) The Depositary with respect to the 2020 Floating Rate Notes will initially be The Depository Trust Company.
(v) The Trustee, initial Paying Agent and Registrar for the 2020 Floating Rate Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
(w) Article 8 of the Base Indenture shall be applicable to the 2020 Floating Rate Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(x) Except as otherwise set forth herein and in the 2020 Floating Rate Notes, the terms of the 2020 Floating Rate Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 3. Creation and Authorization of the Series of 2021 Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the 3.800% Senior Notes due 2021.
(b) The 2021 Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2021 Notes shall be substantially in the form attached hereto as Exhibit B , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2021 Notes are to be issued initially in an aggregate principal amount of $1,200,000,000; provided, however , that the aggregate principal amount of the 2021 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2021 Notes.
(e) The initial offering price to the public of the 2021 Notes shall be 99.885% of the principal amount of the 2021 Notes.
(f) The 2021 Notes will mature on October 22, 2021, subject to the provisions of the Indenture relating to acceleration.
(g) The 2021 Notes will bear interest from October 22, 2018, or from the most recent interest payment date to which interest has been paid or duly provided for, at a rate of 3.800% per annum, payable semi-annually on April 22 and October 22 of each year, beginning on April 22, 2019, to the Persons in whose names the 2021 Notes are registered at the close of business on the preceding April 7 or October 7 as the case may be (whether or not a Business Day).
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(h) The amount of interest payable on the 2021 Notes will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any day on which interest is payable on the 2021 Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
(i) Principal and interest on the 2021 Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
(j) The Company will be required to offer to purchase all of the 2021 Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10 .
(k) The Company will have the right to redeem the 2021 Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2021 Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the 2021 Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.150% plus accrued interest on the 2021 Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
(l) Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2021 Notes to be redeemed.
(m) The 2021 Notes will not be subject to, nor have the benefit of, any sinking fund.
(n) The 2021 Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(o) The 2021 Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(p) The 2021 Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2021 Notes may exchange such interests in accordance with the Indenture and the terms of the 2021 Notes.
(q) The Depositary with respect to the 2021 Notes will initially be The Depository Trust Company.
(r) The Trustee, initial Paying Agent and Registrar for the 2021 Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
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(s) Article 8 of the Base Indenture shall be applicable to the 2021 Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(t) Except as otherwise set forth herein and in the 2021 Notes, the terms of the 2021 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 4. Creation and Authorization of the Series of 2024 Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the 4.300% Senior Notes due 2024.
(b) The 2024 Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2024 Notes shall be substantially in the form attached hereto as Exhibit C , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2024 Notes are to be issued initially in an aggregate principal amount of $1,000,000,000; provided, however , that the aggregate principal amount of the 2024 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2024 Notes.
(e) The initial offering price to the public of the 2024 Notes shall be 99.950% of the principal amount of the 2024 Notes.
(f) The 2024 Notes will mature on May 1, 2024, subject to the provisions of the Indenture relating to acceleration.
(g) The 2024 Notes will bear interest from October 22, 2018, or from the most recent interest payment date to which interest has been paid or duly provided for, at a rate of 4.300% per annum, payable semi-annually on May 1 and November 1 of each year, beginning on May 1, 2019, to the Persons in whose names the 2024 Notes are registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day).
(h) The amount of interest payable on the 2024 Notes will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any day on which interest is payable on the 2024 Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
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(i) Principal and interest on the 2024 Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
(j) The Company will be required to offer to purchase all of the 2024 Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10.
(k) Prior to April 1, 2024, the Company will have the right to redeem the 2024 Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2024 Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the 2024 Notes to be redeemed that would be due if the 2024 Notes matured on April 1, 2024 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.200% plus accrued interest on the 2024 Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
(l) On or after April 1, 2024, the Company will have the right to redeem the 2024 Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2024 Notes to be redeemed plus accrued interest on the 2024 Notes to be redeemed to, but not including, the date of redemption.
(m) Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2024 Notes to be redeemed.
(n) The 2024 Notes will not be subject to, nor have the benefit of, any sinking fund.
(o) The 2024 Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(p) The 2024 Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(q) The 2024 Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2024 Notes may exchange such interests in accordance with the Indenture and the terms of the 2024 Notes.
(r) The Depositary with respect to the 2024 Notes will initially be The Depository Trust Company.
(s) The Trustee, initial Paying Agent and Registrar for the 2024 Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
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(t) Article 8 of the Base Indenture shall be applicable to the 2024 Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(u) Except as otherwise set forth herein and in the 2024 Notes, the terms of the 2024 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 5. Creation and Authorization of the Series of 2025 Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the 4.600% Senior Notes due 2025.
(b) The 2025 Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2025 Notes shall be substantially in the form attached hereto as Exhibit D , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2025 Notes are to be issued initially in an aggregate principal amount of $1,000,000,000; provided, however , that the aggregate principal amount of the 2025 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2025 Notes.
(e) The initial offering price to the public of the 2025 Notes shall be 99.714% of the principal amount of the 2025 Notes.
(f) The 2025 Notes will mature on November 1, 2025, subject to the provisions of the Indenture relating to acceleration.
(g) The 2025 Notes will bear interest from October 22, 2018, or from the most recent interest payment date to which interest has been paid or duly provided for, at a rate of 4.600% per annum, payable semi-annually on May 1 and November 1 of each year, beginning on May 1, 2019, to the Persons in whose names the 2025 Notes are registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day).
(h) The amount of interest payable on the 2025 Notes will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any day on which interest is payable on the 2025 Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
(i) Principal and interest on the 2025 Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
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(j) The Company will be required to offer to purchase all of the 2025 Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10.
(k) Prior to September 1, 2025, the Company will have the right to redeem the 2025 Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2025 Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the 2025 Notes to be redeemed that would be due if the 2025 Notes matured on September 1, 2025 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.250% plus accrued interest on the 2025 Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
(l) On or after September 1, 2025, the Company will have the right to redeem the 2025 Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2025 Notes to be redeemed plus accrued interest on the 2025 Notes to be redeemed to, but not including, the date of redemption.
(m) Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2025 Notes to be redeemed.
(n) The 2025 Notes will not be subject to, nor have the benefit of, any sinking fund.
(o) The 2025 Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(p) The 2025 Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(q) The 2025 Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2025 Notes may exchange such interests in accordance with the Indenture and the terms of the 2025 Notes.
(r) The Depositary with respect to the 2025 Notes will initially be The Depository Trust Company.
(s) The Trustee, initial Paying Agent and Registrar for the 2025 Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
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(t) Article 8 of the Base Indenture shall be applicable to the 2025 Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(u) Except as otherwise set forth herein and in the 2025 Notes, the terms of the 2025 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 6. Creation and Authorization of the Series of 2028 Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the 4.850% Senior Notes due 2028.
(b) The 2028 Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2028 Notes shall be substantially in the form attached hereto as Exhibit E , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2028 Notes are to be issued initially in an aggregate principal amount of $1,300,000,000; provided, however , that the aggregate principal amount of the 2028 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2028 Notes.
(e) The initial offering price to the public of the 2028 Notes shall be 99.967% of the principal amount of the 2028 Notes.
(f) The 2028 Notes will mature on November 1, 2028, subject to the provisions of the Indenture relating to acceleration.
(g) The 2028 Notes will bear interest from October 22, 2018, or from the most recent interest payment date to which interest has been paid or duly provided for, at a rate of 4.850% per annum, payable semi-annually on May 1 and November 1 of each year, beginning on May 1, 2019, to the Persons in whose names the 2028 Notes are registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day).
(h) The amount of interest payable on the 2028 Notes will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any day on which interest is payable on the 2028 Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
(i) Principal and interest on the 2028 Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
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(j) The Company will be required to offer to purchase all of the 2028 Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10.
(k) Prior to August 1, 2028, the Company will have the right to redeem the 2028 Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2028 Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the 2028 Notes to be redeemed that would be due if the 2028 Notes matured on August 1, 2028 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.300% plus accrued interest on the 2028 Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
(l) On or after August 1, 2028, the Company will have the right to redeem the 2028 Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2028 Notes to be redeemed plus accrued interest on the 2028 Notes to be redeemed to, but not including, the date of redemption.
(m) Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2028 Notes to be redeemed.
(n) The 2028 Notes will not be subject to, nor have the benefit of, any sinking fund.
(o) The 2028 Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(p) The 2028 Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(q) The 2028 Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2028 Notes may exchange such interests in accordance with the Indenture and the terms of the 2028 Notes.
(r) The Depositary with respect to the 2028 Notes will initially be The Depository Trust Company.
(s) The Trustee, initial Paying Agent and Registrar for the 2028 Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
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(t) Article 8 of the Base Indenture shall be applicable to the 2028 Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(u) Except as otherwise set forth herein and in the 2028 Notes, the terms of the 2028 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 7. Creation and Authorization of the Series of 2038 Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the 5.300% Senior Notes due 2038.
(b) The 2038 Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2038 Notes shall be substantially in the form attached hereto as Exhibit F , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2038 Notes are to be issued initially in an aggregate principal amount of $1,000,000,000; provided, however , that the aggregate principal amount of the 2038 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2038 Notes.
(e) The initial offering price to the public of the 2038 Notes shall be 99.583% of the principal amount of the 2038 Notes.
(f) The 2038 Notes will mature on November 1, 2038, subject to the provisions of the Indenture relating to acceleration.
(g) The 2038 Notes will bear interest from October 22, 2018, or from the most recent interest payment date to which interest has been paid or duly provided for, at a rate of 5.300% per annum, payable semi-annually on May 1 and November 1 of each year, beginning on May 1, 2019, to the Persons in whose names the 2038 Notes are registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day).
(h) The amount of interest payable on the 2038 Notes will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any day on which interest is payable on the 2038 Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
(i) Principal and interest on the 2038 Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
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(j) The Company will be required to offer to purchase all of the 2038 Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10 .
(k) Prior to May 1, 2038, the Company will have the right to redeem the 2038 Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2038 Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the 2038 Notes to be redeemed that would be due if the 2038 Notes matured on May 1, 2038 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.300% plus accrued interest on the 2038 Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
(l) On or after May 1, 2038, the Company will have the right to redeem the 2038 Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2038 Notes to be redeemed plus accrued interest on the 2038 Notes to be redeemed to, but not including, the date of redemption.
(m) Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2038 Notes to be redeemed.
(n) The 2038 Notes will not be subject to, nor have the benefit of, any sinking fund.
(o) The 2038 Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(p) The 2038 Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(q) The 2038 Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2038 Notes may exchange such interests in accordance with the Indenture and the terms of the 2038 Notes.
(r) The Depositary with respect to the 2038 Notes will initially be The Depository Trust Company.
(s) The Trustee, initial Paying Agent and Registrar for the 2038 Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
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(t) Article 8 of the Base Indenture shall be applicable to the 2038 Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(u) Except as otherwise set forth herein and in the 2038 Notes, the terms of the 2038 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 8. Creation and Authorization of the Series of 2048 Notes .
(a) There is hereby created and authorized a Series of Notes to be issued under the Indenture designated as the 5.400% Senior Notes due 2048.
(b) The 2048 Notes shall be the Companys senior unsecured obligations and will rank equally with all the Companys other senior unsecured obligations from time to time outstanding.
(c) The 2048 Notes shall be substantially in the form attached hereto as Exhibit G , the terms and provisions of which shall constitute a part of, and are hereby expressly incorporated in, the Indenture.
(d) The 2048 Notes are to be issued initially in an aggregate principal amount of $1,000,000,000; provided, however , that the aggregate principal amount of the 2048 Notes which may be outstanding may be increased by the Company upon the terms and subject to the conditions set forth in the Indenture and the 2048 Notes.
(e) The initial offering price to the public of the 2048 Notes shall be 99.498% of the principal amount of the 2048 Notes.
(f) The 2048 Notes will mature on November 1, 2048, subject to the provisions of the Indenture relating to acceleration.
(g) The 2048 Notes will bear interest from October 22, 2018, or from the most recent interest payment date to which interest has been paid or duly provided for, at a rate of 5.400% per annum, payable semi-annually on May 1 and November 1 of each year, beginning on May 1, 2019, to the Persons in whose names the 2048 Notes are registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day).
(h) The amount of interest payable on the 2048 Notes will be computed on the basis of a 360-day year of twelve 30-day months. In the event that any day on which interest is payable on the 2048 Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
(i) Principal and interest on the 2048 Notes are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in the Global Notes.
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(j) The Company will be required to offer to purchase all of the 2048 Notes upon the occurrence of a Change of Control Triggering Event pursuant to the terms set forth in Section 10 .
(k) Prior to May 1, 2048, the Company will have the right to redeem the 2048 Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2048 Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the 2048 Notes to be redeemed that would be due if the 2048 Notes matured on May 1, 2048 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.350% plus accrued interest on the 2048 Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
(l) On or after May 1, 2048, the Company will have the right to redeem the 2048 Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2048 Notes to be redeemed plus accrued interest on the 2048 Notes to be redeemed to, but not including, the date of redemption.
(m) Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of 2048 Notes to be redeemed.
(n) The 2048 Notes will not be subject to, nor have the benefit of, any sinking fund or mandatory redemption obligation.
(o) The 2048 Notes will not be exchangeable for or convertible into common shares of the Company or any other security.
(p) The 2048 Notes will be issuable in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(q) The 2048 Notes are to be issued in fully registered form and shall be issued initially as Global Notes. Beneficial owners of interests in the 2048 Notes may exchange such interests in accordance with the Indenture and the terms of the 2048 Notes.
(r) The Depositary with respect to the 2048 Notes will initially be The Depository Trust Company.
(s) The Trustee, initial Paying Agent and Registrar for the 2048 Notes will be Wells Fargo Bank, National Association, and the initial place of payment will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Seventh Floor, Minneapolis, MN 55415, Attn: Corporate Trust Operations.
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(t) Article 8 of the Base Indenture shall be applicable to the 2048 Notes. The covenants described in Sections 10, 11, 12 and 13 of this Second Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Base Indenture.
(u) Except as otherwise set forth herein and in the 2048 Notes, the terms of the 2048 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.
Section 9. Special Mandatory Redemption .
(a) If (i) the Merger is not consummated on or prior to April 1, 2019, or (ii) prior to April 1, 2019, the Merger Agreement is terminated, other than in connection with the consummation of the Merger (each referred to as a Special Mandatory Redemption Event ), the Company will be obligated to redeem all of the Special Mandatory Redemption Notes on the Special Mandatory Redemption Date at a redemption price (the Special Mandatory Redemption Price ) equal to 101% of the aggregate principal amount of the applicable Special Mandatory Redemption Notes, plus accrued and unpaid interest to, but not including, the Special Mandatory Redemption Date. Upon the occurrence of a Special Mandatory Redemption Event, the Company will promptly (but in no event later than five Business Days following such Special Mandatory Redemption Event) cause notice to be delivered electronically or mailed, with a copy to the Trustee, to each holder at its registered address (such date of notification to the Holders, the Special Mandatory Redemption Notice Date ). The notice will inform Holders that the Special Mandatory Redemption Notes will be redeemed on the redemption date set forth in such notice, which will be no earlier than three Business Days and no later than 30 days from the Special Mandatory Redemption Notice Date (such date, the Special Mandatory Redemption Date ), and that all of the outstanding Special Mandatory Redemption Notes will be redeemed at the Special Mandatory Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the Holders of the Special Mandatory Redemption Notes. At or prior to 12:00 p.m., New York City time, on the Business Day immediately preceding the Special Mandatory Redemption Date, the Company will deposit with the Trustee funds sufficient to pay the Special Mandatory Redemption Price for the Special Mandatory Redemption Notes. If such deposit is made as provided above, the Special Mandatory Redemption Notes will cease to bear interest on and after the Special Mandatory Redemption Date.
(b) The 2048 Notes are not subject to the provisions of this Section 9.
(c) Upon the occurrence of the consummation of the Merger, the foregoing provisions of this Section 9 will cease to apply.
Section 10. Purchase of Notes upon a Change of Control Triggering Event .
(a) If a Change of Control Triggering Event occurs with respect to a Series of Notes and (i) the Company has not exercised its option to redeem such Notes in accordance with the terms of this Second Supplemental Indenture and (ii) no Special Mandatory Redemption Event has occurred, the Company shall be required to make an offer (a Change of Control Offer ) to each Holder of the applicable Series of Notes to repurchase all or any part (equal to $2,000 and
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any integral multiples of $1,000 in excess thereof, provided that any portion not repurchased shall be in a principal amount of at least $2,000) of such Holders of the applicable Series of Notes on the terms set forth herein. In a Change of Control Offer, the Company shall be required to offer payment in cash equal to 101% of the aggregate principal amount of the applicable Series of Notes to be repurchased, plus accrued and unpaid interest, if any, on the applicable Series of Notes to be repurchased to, but not including, the date of repurchase (a Change of Control Payment ), subject to the rights of the Holders of the applicable Series of Notes on the relevant record date to receive interest due on the relevant interest payment date.
(b) Within 30 days following any Change of Control Triggering Event or, at the Companys option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall deliver to Holders of the applicable Series of Notes, with a copy of such notice delivered to the Trustee, describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase such Notes on the date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is delivered, other than as may be required by law (a Change of Control Payment Date ). The notice shall, if delivered prior to the date of consummation of the Change of Control, state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
(c) Any exercise by a Holder of its election to accept the Change of Control Offer shall be irrevocable. The Change of Control Offer may be accepted for less than the entire principal amount of such Note, but in that event the principal amount of such Note remaining outstanding after repurchase must be equal to $2,000 or an integral multiple of $1,000 in excess thereof.
(d) On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer and not validly withdrawn;
(ii) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered and not validly withdrawn; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted for repurchase together with an Officers Certificate stating the aggregate principal amount of the Notes or portions of Notes being repurchased and that all conditions precedent to the repurchase by the Company of the applicable Series of Notes pursuant to the Change of Control Offer have been met.
(e) The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and the third party purchases all of the applicable Series of Notes properly tendered and not withdrawn under its offer.
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(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the applicable Series of Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the applicable Series of Notes, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions of the applicable Series of Notes by virtue of any such conflict.
Section 11. Limitation on Liens .
(a) The Company will not itself, and will not permit any Consolidated Subsidiary to, issue, assume or guarantee any Indebtedness, if such Indebtedness is secured by mortgage, pledge, security interest or other lien or encumbrance (any mortgage, pledge, security interest or other lien or encumbrance being hereinafter in this Section 11 referred to as a Lien ) upon or with respect to any Principal Property or on the capital stock of any Consolidated Subsidiary that owns Principal Property (unless all obligations and indebtedness thereby secured are held by the Company or a Consolidated Subsidiary) without making effective provision whereby the Notes shall be secured by such Lien equally and ratably with any and all other obligations and indebtedness thereby secured; provided , however , that the foregoing restrictions shall not be applicable to:
(i) Any Lien existing on any Principal Property on October 8, 1990;
(ii) Any Lien created by a Consolidated Subsidiary in favor of the Company or any wholly-owned Consolidated Subsidiary securing Indebtedness of such Consolidated Subsidiary to the Company or to a wholly-owned Consolidated Subsidiary;
(iii) Any Lien existing on any asset of any corporation at the time such corporation becomes a Consolidated Subsidiary and not created in contemplation of such event;
(iv) Any Lien on any asset of any corporation existing at the time such corporation is merged or consolidated with or into the Company or a Consolidated Subsidiary and not created in contemplation of such event;
(v) Any Lien on any asset existing at the time of acquisition thereof by the Company or any Consolidated Subsidiary and not created in contemplation of such event;
(vi) Any Lien on any asset or any improvement thereof securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring such asset or the making of any improvement thereof; provided that such Lien attaches to such asset concurrently with or within 180 days after the acquisition thereof or the making of such improvement; and provided , further , that the principal amount of the Indebtedness secured by any such Lien, together with all other Indebtedness secured by a Lien on such property, shall not exceed the purchase price of such property or the cost of such improvement;
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(vii) Any Lien incurred in connection with pollution control, industrial revenue or any similar financing;
(viii) Any Lien arising out of the refinancing, extension, renewal or refunding of any Indebtedness secured by any Lien permitted by any of clauses (i) through (vii) above; provided that such Indebtedness is not increased and is not secured by any additional assets; and
(ix) Liens arising in the ordinary course of business of the Company or any Consolidated Subsidiary which (A) do not secure Indebtedness and (B) do not in the aggregate materially detract from the value of the assets of the Company or such Consolidated Subsidiary, as the case may be, or materially impair the use thereof, in the operation of the Companys or such Consolidated Subsidiarys business.
(b) Notwithstanding the provisions of subsection (a) of this Section 11, the Company or any Consolidated Subsidiary may issue, assume or guarantee Indebtedness secured by a Lien which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other such Indebtedness of the Company and its Consolidated Subsidiaries and the Attributable Debt in respect of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions not subject to the limitation contained in Section 12), does not at the time exceed ten percent (10%) of Consolidated Net Tangible Assets, as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of the Company.
Section 12. Limitation on Sale and Lease-Back Transactions . The Company will not, nor will it permit any Consolidated Subsidiary to, enter into any arrangement with any Person (other than the Company) providing for the leasing by the Company or a Consolidated Subsidiary of any Principal Property (except for temporary leases for a term of not more than three years), which property has been or is to be sold or transferred by the Company or such Consolidated Subsidiary to such Person (herein referred to as a Sale and Lease-Back Transaction ), unless (a) the net proceeds to the Company or such Consolidated Subsidiary from such sale or transfer equal or exceed the fair value (as determined by the Board of Directors of the Company) of the property so leased, (b) the Company or such Consolidated Subsidiary would be entitled to incur Indebtedness secured by a Lien on the property to be leased pursuant to Section 11, or (c) the Company shall, and in any such case the Company covenants that it will, apply an amount equal to the fair value (as determined by the Board of Directors of the Company) of the property so leased to the retirement (other than any mandatory retirement), within ninety (90) days of the effective date of any such Sale and Lease-Back Transaction, of Funded Indebtedness of the Company.
Section 13. Reports by the Company .
(a) The Company shall file with the Trustee, within fifteen (15) days after the Company is required to file the same with the SEC, after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
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the Company is not required to file information, documents or reports pursuant to either of such sections, then the Company shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC and within fifteen (15) days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Company will be deemed to have furnished such information, documents or reports referred to above to the Trustee if the Company has filed such information, documents or reports with the SEC via the EDGAR filing system (or any successor system) or, if at any time the Company is no longer subject to reporting under Section 13 or 15(d) of the Exchange Act and is not permitted to file such information, documents or reports with the SEC, if the Company posts such information, documents or reports on the Companys publicly available website and (ii) if at any time the Company is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will not be deemed to have failed to comply with any of its obligations under this Section 13(a) until thirty (30) days after the date any information, document or report hereunder is required to be filed with the Trustee.
(b) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants under the Indenture or this Second Supplemental Indenture (as to which the Trustee is entitled to rely exclusively on Officers Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.
Section 14. Effect of Second Supplemental Indenture . The provisions of this Second Supplemental Indenture are intended to supplement those of the Indenture as in effect immediately prior to the execution and delivery hereof. The Indenture shall remain in full force and effect except to the extent that the provisions of the Indenture are expressly modified by the terms of this Second Supplemental Indenture.
Section 15. Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SECOND SUPPLEMENTAL INDENTURE AND THE NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 16. Trustee Not Responsible for Recitals or Issuance of Notes . The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Second Supplemental Indenture or of the Notes other than with respect to the Trustees authentication of the Notes and execution of this Second Supplemental Indenture. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the Companys rating status, making any request upon any Rating Agency, or determining whether any Rating Event with respect to the Notes has occurred.
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Section 17. Conflict with TIA . If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with a provision of the TIA that is required under the TIA to be a part of and govern this Second Supplemental Indenture, the latter provisions shall control. If any provision of this Second Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Second Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 18. Counterparts . This Second Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals and shall be deemed to be their original signatures for all purposes.
[ The remainder of this page is left blank intentionally ]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first written above.
CONAGRA BRANDS, INC. | ||
By: |
/s/ Johan Nystedt |
|
Name: | Johan Nystedt | |
Title: | Vice President, Treasurer | |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
||
By: |
/s/ Gregory S. Clarke |
|
Name: | Gregory S. Clarke | |
Title: | Vice President |
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Exhibit A
Form of Global 2020 Floating Rate Note
A-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
Floating Rate Note due 2020
No. [ ] | CUSIP: 205887 BX9 | |
$[ ] | ISIN: US205887BX94 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on October 22, 2020, and to pay interest thereon (computed on the basis of the actual number of days in each quarterly interest period and a 360-day year), quarterly on January 22, April 22, July 22 and October 22, beginning on January 22, 2019, on said principal amount at a rate equal to three-month LIBOR plus 0.750% per annum, from the January 22, April 22, July 22 or October 22, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid on this Note or duly provided for, in which case from October 22, 2018 until payment of said principal sum has been made or duly provided for. The interest, so payable on January 22, April 22, July 22 and October 22 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on each January 7, April 7, July 7 and October 7 preceding the applicable interest payment date, whether or not a Business Day. Notwithstanding the foregoing, in the event that any day (other than the maturity date) on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date shall be made on the next succeeding Business Day and interest shall accrue to, but not including, the date interest is paid; provided that if such next succeeding Business Day does not occur in the calendar month of the relevant interest payment date, payment shall be made on the Business Day immediately preceding the interest payment date. The initial interest period is October 22, 2018 through, but not including, January 22, 2019.
A-2
This Note shall accrue interest at a variable rate reset each interest period as described below. The interest rate for this Note for a particular interest period shall be a per annum rate equal to the three-month LIBOR as determined on the applicable interest determination date by the calculation agent appointed by the Company, which initially will be the Trustee, plus 0.750%. The interest rate on this Note shall be reset on the first day of each interest period other than the initial interest period, each such date an interest reset date. An interest period is the period commencing on an interest payment date (or, in the case of the initial interest period, commencing on the date that this Note is issued) and ending on the day immediately preceding the next interest payment date or the maturity date, as the case may be; provided that if the Company shall default in the payment of interest due on such January 22, April 22, July 22 or October 22, then this Note shall bear interest from the next preceding January 22, April 22, July 22 or October 22, to which interest has been paid or duly provided for or, if no interest has been paid on this Note or duly provided for, from October 22, 2018. The interest determination date for an interest period shall be the second London Banking Day preceding the first day of such interest period. The initial interest determination date for the initial interest period shall be October 18, 2018.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $525,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017, as supplemented by a Second Supplemental Indenture dated as of October 22, 2018 (hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys Floating Rate Notes due 2020 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
A-3
On or after October 22, 2019, the Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of the Notes to be redeemed.
The Notes are subject to special mandatory redemption, on the terms set forth in the Indenture.
The Notes will not be subject to, nor have the benefit of, a sinking fund.
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, 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 or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
A-4
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within ninety (90) days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
A-5
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A-6
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018
CONAGRA BRANDS, INC. | ||
By: |
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Name: | ||
Title: | ||
TRUSTEES CERTIFICATE OF AUTHENTICATION |
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Dated: | ||
This is one of the Securities of the Series designated herein and referred to in the within mentioned Indenture. |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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By: |
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Title: | Authorized Signatory |
A-7
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
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(Insert assignees legal name) | ||
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(Insert assignees soc. sec. or tax I.D. no.) | ||
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(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
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Signature Guarantee: | ||||||
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(Signature must be guaranteed) | Signature | |||||
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
A-8
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
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Amount of Increase in
Maturity
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Principal Amount at
Maturity
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Signature of
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A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||
Your Signature: | ||||
(Sign exactly as your name appears on the face of this Note) | ||||
Tax Identification No.: | ||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-10
Exhibit B
Form of Global 2021 Note
B-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
3.800% Senior Note due 2021
No. [ ] | CUSIP: 205887 BZ4 | |
$[ ] | ISIN: US205887BZ43 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on October 22, 2021, and to pay interest thereon at a rate equal to 3.800% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), semi-annually on April 22 and October 22, beginning on April 22, 2019. The interest, so payable on April 22 and October 22 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the preceding April 7 or October 7, as the case may be (whether or not a Business Day). Notwithstanding the foregoing, in the event that any day on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $1,200,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017,
B-2
as supplemented by a Second Supplemental Indenture dated as of October 22, 2018 (hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys 3.800% Notes due 2021 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
The Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, 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 semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.150% plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption.
The Notes are subject to special mandatory redemption, on the terms set forth in the Indenture.
The Notes will not be subject to, nor have the benefit of, a sinking fund.
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, due and payable in the manner and with the effect provided in the Indenture.
B-3
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within ninety (90) days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
B-4
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
B-5
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018
CONAGRA BRANDS, INC. |
By: |
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Name: | ||
Title: |
TRUSTEES CERTIFICATE OF AUTHENTICATION |
||
Dated: | ||
This is one of the Securities of the Series designated herein and referred to in the within mentioned Indenture. |
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
||
By: |
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|
Title: | Authorized Signatory |
B-6
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
|
|
(Insert assignees legal name) |
||
|
||
(Insert assignees soc. sec. or tax I.D. no.) | ||
|
||
|
||
|
||
|
||
(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
|
||||
Signature Guarantee: | ||||||
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|
|||||
(Signature must be guaranteed) | Signature | |||||
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
B-7
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
|
Amount of Increase in
Maturity
|
Principal Amount at
Maturity
|
Signature of
|
||||
B-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||||
Your Signature: | ||||||
(Sign exactly as your name appears on the face of this Note) | ||||||
Tax Identification No.: | ||||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
B-9
Exhibit C
Form of Global 2024 Note
C-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
4.300% Senior Note due 2024
No. [ ] | CUSIP: 205887 CA8 | |
$[ ] | ISIN: US205887CA82 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on May 1, 2024, and to pay interest thereon at a rate equal to 4.300% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), semi-annually on May 1 and November 1, beginning on May 1, 2019. The interest, so payable on May 1 and November 1 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day). Notwithstanding the foregoing, in the event that any day on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $1,000,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017, as supplemented by a Second Supplemental Indenture dated as of October 22, 2018
C-2
(hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys 4.300% Notes due 2024 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
Prior to April 1, 2024, the Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Series of Notes matured on April 1, 2024 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.200% plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
On or after April 1, 2024, the Company will have the right to redeem the Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed.
The Notes are subject to special mandatory redemption, on the terms set forth in the Indenture.
The Notes will not be subject to, nor have the benefit of, a sinking fund.
C-3
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, 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 or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company
C-4
may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
C-5
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018 | ||
CONAGRA BRANDS, INC. | ||
By: |
|
|
Name: | ||
Title: | ||
TRUSTEES CERTIFICATE OF | ||
AUTHENTICATION | ||
Dated: | ||
This is one of the Securities of the | ||
Series designated herein and referred to in the within mentioned Indenture. |
||
WELLS FARGO BANK, NATIONAL | ||
ASSOCIATION, as Trustee | ||
By: |
|
|
Title: | Authorized Signatory |
C-6
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
|
(Insert assignees legal name) | ||
|
||
(Insert assignees soc. sec. or tax I.D. no.) | ||
|
||
|
||
|
||
|
||
(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
|
||||
Signature Guarantee: | ||||||
|
|
|||||
(Signature must be guaranteed) | Signature | |||||
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
C-7
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
|
Amount of Increase in
Maturity
|
Principal Amount at
Maturity
|
Signature of
|
||||
C-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||||
Your Signature: | ||||||
(Sign exactly as your name appears on the face of this Note) | ||||||
Tax Identification No.: | ||||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
C-9
Exhibit D
Form of Global 2025 Note
D-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
4.600% Senior Note due 2025
No. [ ] | CUSIP: 205887 CB6 | |
$[ ] | ISIN: US205887CB65 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on November 1, 2025, and to pay interest thereon at a rate equal to 4.600% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), semi-annually on May 1 and November 1, beginning on May 1, 2019. The interest, so payable on May 1 and November 1 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day). Notwithstanding the foregoing, in the event that any day on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $1,000,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017, as supplemented by a Second Supplemental Indenture dated as of October 22, 2018
D-2
(hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys 4.600% Notes due 2025 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
Prior to September 1, 2025, the Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Series of Notes matured on September 1, 2025 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.250% plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
On or after September 1, 2025, the Company will have the right to redeem the Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed.
The Notes are subject to special mandatory redemption, on the terms set forth in the Indenture.
The Notes will not be subject to, nor have the benefit of, a sinking fund.
D-3
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, 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 or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company
D-4
may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
D-5
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018 | ||
CONAGRA BRANDS, INC. | ||
By: |
|
|
Name: |
||
Title: | ||
TRUSTEES CERTIFICATE OF AUTHENTICATION |
||
Dated: | ||
This is one of the Securities of the Series designated herein and referred to in the within mentioned Indenture. |
||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
||
By: |
|
|
Title: | Authorized Signatory |
D-6
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
|
|
(Insert assignees legal name) | ||
|
||
(Insert assignees soc. sec. or tax I.D. no.) | ||
|
||
|
||
|
||
|
||
(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
|
||||
Signature Guarantee: | ||||||
|
|
|||||
(Signature must be guaranteed) | Signature | |||||
|
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
D-7
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
|
Amount of Increase in
Maturity
|
Principal Amount at
Maturity
|
Signature of
|
||||
D-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||||
Your Signature: | ||||||
(Sign exactly as your name appears on the face of this Note) | ||||||
Tax Identification No.: | ||||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
D-9
Exhibit E
Form of Global 2028 Note
E-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
4.850% Senior Note due 2028
No. [ ] | CUSIP: 205887 CC4 | |
$[ ] | ISIN: US205887CC49 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on November 1, 2028, and to pay interest thereon at a rate equal to 4.850% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), semi-annually on May 1 and November 1, beginning on May 1, 2019. The interest, so payable on May 1 and November 1 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day). Notwithstanding the foregoing, in the event that any day on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $1,300,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017, as supplemented by a Second Supplemental Indenture dated as of October 22, 2018
E-2
(hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys 4.850% Notes due 2028 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
Prior to August 1, 2028, the Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Series of Notes matured on August 1, 2028 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.300% plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
On or after August 1, 2028, the Company will have the right to redeem the Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed.
The Notes are subject to special mandatory redemption, on the terms set forth in the Indenture.
The Notes will not be subject to, nor have the benefit of, a sinking fund.
E-3
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, 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 or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company
E-4
may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
E-5
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018 |
CONAGRA BRANDS, INC. | ||
By: |
|
|
Name: | ||
Title: |
TRUSTEES CERTIFICATE OF | ||
AUTHENTICATION | ||
Dated: |
This is one of the Securities of the Series designated herein and referred to in the within mentioned Indenture. |
WELLS FARGO BANK, NATIONAL |
ASSOCIATION, as Trustee | ||
By: |
|
|
Title: | Authorized Signatory |
E-6
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
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(Insert assignees legal name) | ||
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(Insert assignees soc. sec. or tax I.D. no.) | ||
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(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
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Signature Guarantee: | ||||||
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(Signature must be guaranteed) | Signature | |||||
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
E-7
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
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Amount of Increase in
Maturity
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Principal Amount at
Maturity
|
Signature of
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E-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||||
Your Signature: | ||||||
(Sign exactly as your name appears on the face of this Note) | ||||||
Tax Identification No.: | ||||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
E-9
Exhibit F
Form of Global 2038 Note
F-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
5.300% Senior Note due 2038
No. [ ] | CUSIP: 205887 CD2 | |
$[ ] | ISIN: US205887CD22 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] DOLLARS ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on November 1, 2038, and to pay interest thereon at a rate equal to 5.300% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), semi-annually on May 1 and November 1, beginning on May 1, 2019. The interest, so payable on May 1 and November 1 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day). Notwithstanding the foregoing, in the event that any day on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $1,000,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017, as supplemented by a Second Supplemental Indenture dated as of October 22, 2018
F-2
(hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys 5.300% Notes due 2038 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
Prior to May 1, 2038, the Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Series of Notes matured on May 1, 2038 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.300% plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
On or after May 1, 2038, the Company will have the right to redeem the Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed.
The Notes are subject to special mandatory redemption, on the terms set forth in the Indenture.
The Notes will not be subject to, nor have the benefit of, a sinking fund.
F-3
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, 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 or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company
F-4
may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
F-5
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018 | ||
CONAGRA BRANDS, INC. | ||
By: |
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Name: |
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Title: |
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TRUSTEES CERTIFICATE OF | ||
AUTHENTICATION | ||
Dated: |
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This is one of the Securities of the Series designated herein and referred to in the within mentioned Indenture. |
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WELLS FARGO BANK, NATIONAL | ||
ASSOCIATION, as Trustee | ||
By: |
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Title: | Authorized Signatory |
F-6
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
|
|
(Insert assignees legal name) | ||
|
||
(Insert assignees soc. sec. or tax I.D. no.) | ||
|
||
|
||
|
||
|
||
(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
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||||
Signature Guarantee: | ||||||
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(Signature must be guaranteed) | Signature | |||||
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
F-7
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
|
Amount of Increase in
Maturity
|
Principal Amount at
Maturity
|
Signature of
|
||||
F-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||||
Your Signature: | ||||||
(Sign exactly as your name appears on the face of this Note) | ||||||
Tax Identification No.: | ||||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
F-9
Exhibit G
Form of Global 2048 Note
G-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE DEPOSITARY ) OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.
CONAGRA BRANDS, INC.
5.400% Senior Note due 2048
No. [ ] | CUSIP: 205887 CE0 | |
$[ ] | ISIN: US205887CE05 |
Conagra Brands, Inc., a Delaware corporation (hereinafter called the Company, which term includes any successor corporation under the Indenture hereinafter referred to), for value received hereby promises to pay to Cede & Co. or registered assigns, the principal sum of [ ] ($[ ]), or such other principal sum as shall be set forth in the Schedule of Increases or Decreases attached hereto, on November 1, 2048, and to pay interest thereon at a rate equal to 5.400% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), semi-annually on May 1 and November 1, beginning on May 1, 2019. The interest, so payable on May 1 and November 1 shall, subject to certain exceptions provided in the Indenture referred to herein, be paid to the Person in whose name this Note is registered at the close of business on the preceding April 15 or October 15, as the case may be (whether or not a Business Day). Notwithstanding the foregoing, in the event that any day on which interest is payable on this Note is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of such delay), with the same force and effect as if made on such date.
Principal and interest on this Note are payable at the Corporate Trust Office of the Trustee, except as otherwise provided in this Global Note, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. At the option of the Company, interest may be paid by check to the Person entitled thereto at his last address as it appears on the registry books, and principal may be paid by check to the registered Holder hereof or other Person entitled thereto against surrender of this Note.
This Note is one of a duly authorized issue of notes (hereinafter called the Securities ) of the Company of the Series hereinafter specified, which Series is as of the date of original issuance of this Note limited in the aggregate principal amount to $1,000,000,000, all such Securities issued or to be issued under and pursuant to an Indenture dated as of October 12, 2017, as supplemented by a Second Supplemental Indenture dated as of October 22, 2018
G-2
(hereinafter referred to as the Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (hereinafter referred to as the Trustee which term shall also include any successor or co-trustee under the Indenture), to which Indenture reference is hereby made for a statement of the rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. As provided in the Indenture, the Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be denominated in currencies other than Dollars (including composite currencies), may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, 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 Global Notes (each a Global Note ) which represent all of the Companys 5.400% Notes due 2048 (the Notes ). Provided the Company complies with the requirements of the Indenture, the Company may, without the consent of the Holders of the Notes, create and issue additional senior debt securities ranking equally with the Notes and otherwise similar in all respects (except for the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price) so that the Notes and the additional senior debt securities would form a single Series of Securities under the Indenture.
Prior to May 1, 2048, the Company will have the right to redeem the Notes in whole or in part, at its option at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed that would be due if such Series of Notes matured on May 1, 2048 (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.350% plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Calculation of the redemption price will be made by the Company or on its behalf by such person as the Company shall designate; provided that such calculation or the correctness thereof shall not be a duty or obligation of the Trustee.
On or after May 1, 2048, the Company will have the right to redeem the Notes in whole or in part, at its option any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued interest on the Notes to be redeemed to, but not including, the date of redemption. Notice of any redemption will be mailed by first class mail or otherwise delivered in accordance with applicable procedures of The Depository Trust Company at least 10 days but not more than 60 days before the redemption date to each Holder of Notes to be redeemed.
The Notes will not be subject to, nor have the benefit of, any sinking fund or mandatory redemption obligation.
If a Change of Control Triggering Event occurs, the Company shall be required to make an offer to each Holder of the Notes to repurchase such Holders Notes on the terms set forth in the Indenture.
G-3
The Indenture contains provisions for defeasance and discharge at the Companys option of the entire principal of all the Securities of any Series upon compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Notes, as defined in the Indenture, shall occur and be continuing, the principal of all the Notes may be declared, or shall ipso facto become, as applicable, 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 or elimination of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time outstanding, of all Series to be affected thereby, voting together as a single class. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any Series, prior to any declaration accelerating the maturity of such Securities, the Holders of a majority in aggregate principal amount of the Securities of all Series at the time outstanding with respect to which an Event of Default shall have occurred and be continuing voting together as a single class may on behalf of the Holders of all the Securities of such Series waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default in the payment of the principal of or interest on any of the Securities. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Global Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Global Note at the times, place and rate, and in the coin or currency, herein prescribed.
This Note is a Global Note registered in the name of Cede & Co., as nominee of the Depositary. Beneficial interests in this Note will be shown on, and transfers thereof will be effected only through, records maintained by the Depositary and the participants of the Depositary. Except as described below, Notes in certificated form will not be issued in exchange for this Global Note.
If the Depositary for the Notes represented by this Global Note is at any time unwilling or unable to continue as Depositary or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days or an Event of Default has occurred and is continuing with respect to the Notes, the Company shall issue such Notes in definitive form in exchange for this Global Note. In addition, the Company may at any time and in its sole discretion, but subject to the procedures of the Depositary, determine not to have the Notes represented by one or more Global Notes and, in such event, shall issue Notes in definitive form in exchange for the Global Note or Notes representing the Notes.
G-4
The Notes are issuable only in registered form without coupons in denominations of $2,000 and multiples of $1,000 in excess of $2,000.
This Note shall for all purposes be governed by, and construed in accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or such Trustee may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment as herein provided, subject to the record date provisions of this Note, and for all other purposes, whether or not this Note be overdue and notwithstanding any notation of ownership or other writing thereon and neither the Company, such Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Indenture.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
G-5
Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee for the Notes by manual signature, this Note shall not be entitled to any benefit under the Indenture, nor be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: October 22, 2018 | ||
CONAGRA BRANDS, INC. | ||
By: |
|
|
Name: | ||
Title: | ||
TRUSTEES CERTIFICATE OF | ||
AUTHENTICATION | ||
Dated: | ||
This is one of the Securities of the Series designated herein and referred to in the within mentioned Indenture. |
||
WELLS FARGO BANK, NATIONAL | ||
ASSOCIATION, as Trustee | ||
By: |
|
|
Title: | Authorized Signatory |
G-6
A SSIGNMENT F ORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
|
|
(Insert assignees legal name) | ||
|
||
(Insert assignees soc. sec. or tax I.D. no.) | ||
|
||
|
||
|
||
|
||
(Print or type assignees name, address and zip code) |
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Dated: | Signature: |
|
||||
Signature Guarantee: | ||||||
|
|
|||||
(Signature must be guaranteed) | Signature | |||||
|
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
G-7
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL NOTE
The following increases and decreases to this Global Note have been made:
Date of Increase or Decrease |
Amount of Decrease in
Maturity
|
Amount of Increase in
Maturity
|
Principal Amount at
Maturity
|
Signature of
|
||||
G-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 10 of the Second Supplemental Indenture, please sign below. If you want to elect to have only part of the Note purchased by the Company, state the amount you elect to have purchased:
$
Date: | ||||||
Your Signature: | ||||||
(Sign exactly as your name appears on the face of this Note) | ||||||
Tax Identification No.: | ||||||
Signature Guarantee*: |
* |
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
G-9
Exhibit 5.1
90 SOUTH SEVENTH STREET SUITE 4950 MINNEAPOLIS, MINNESOTA 55402
TELEPHONE: +1.612.217.8800 FACSIMILE: +1.844.345.3178
October 22, 2018
Conagra Brands, Inc.
222 Merchandise Mart Plaza, Suite 1300
Chicago, Illinois 60654
Re: $525,000,000 of Floating Rate Notes due 2020;
$1,200,000,000 of 3.800% Senior Notes due 2021;
$1,000,000,000 of 4.300% Senior Notes due 2024;
$1,000,000,000 of 4.600% Senior Notes due 2025;
$1,300,000,000 of 4.850% Senior Notes due 2028;
$1,000,000,000 of 5.300% Senior Notes due 2038; and
$1,000,000,000 of 5.400% Senior Notes due 2048;
of Conagra Brands, Inc.
Ladies and Gentlemen:
We are acting as counsel for Conagra Brands, Inc., a Delaware corporation (the Company ), in connection with the issuance and sale of $525,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2020, $1,200,000,000 aggregate principal amount of the Companys 3.800% Senior Notes due 2021, $1,000,000,000 aggregate principal amount of the Companys 4.300% Senior Notes due 2024, $1,000,000,000 aggregate principal amount of the Companys 4.600% Senior Notes due 2025, $1,300,000,000 aggregate principal amount of the Companys 4.850% Senior Notes due 2028, $1,000,000,000 aggregate principal amount of the Companys 5.300% Senior Notes due 2038, and $1,000,000,000 aggregate principal amount of the Companys 5.400% Senior Notes due 2048 (collectively, the Notes ), pursuant to the Underwriting Agreement, dated as of October 15, 2018, entered into by and among the Company and Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Mizuho Securities USA LLC, acting as representatives of the several underwriters named therein (collectively, the Underwriters ). The Notes will be issued pursuant to an indenture, dated as of October 12, 2017 (the Base Indenture ), between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee ), as supplemented by the Second Supplemental Indenture, dated as of October 22, 2018 (together with the Base Indenture, the Indenture ), between the Company and the Trustee.
In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the Notes constitute valid and binding obligations of the Company.
ALKHOBAR AMSTERDAM ATLANTA BEIJING BOSTON BRISBANE BRUSSELS CHICAGO CLEVELAND COLUMBUS DALLAS
DETROIT DUBAI DÜSSELDORF FRANKFURT HONG KONG HOUSTON IRVINE LONDON LOS ANGELES MADRID MELBOURNE
MEXICO CITY MIAMI MILAN MINNEAPOLIS MOSCOW MUNICH NEW YORK PARIS PERTH PITTSBURGH RIYADH
SAN DIEGO SAN FRANCISCO SÃO PAULO SHANGHAI SILICON VALLEY SINGAPORE SYDNEY TAIPEI TOKYO WASHINGTON
Conagra Brands, Inc.
October 22, 2018
Page 2
The opinion set forth above is subject to the following limitations, qualifications and assumptions:
For the purposes of the opinion expressed herein, we have assumed that (i) the Trustee has authorized, executed and delivered the Indenture, (ii) the Notes have been duly authenticated by the Trustee in accordance with the terms of the Indenture and (iii) the Indenture is the valid, binding and enforceable obligation of the Trustee.
The opinion expressed herein is limited by (i) bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors rights generally and (ii) general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or at equity.
As to facts material to the opinion and assumptions expressed herein, we have relied upon oral or written statements and representations of the officers and other representatives of the Company and others.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware and the laws of the State of New York, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof filed by the Company and incorporated by reference into the Registration Statement on Form S-3 (Registration No. 333-227740) (the Registration Statement ), filed by the Company to effect the registration of the Notes under the Securities Act of 1933 (the Act ) and to the reference to Jones Day under the caption Legal Matters in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours, |
/s/ Jones Day |