Exhibit 1.1
Exhibit 1.1
$500,000,000
Energizer Holdings, Inc.
4.700% Senior Notes due 2022
Underwriting Agreement
May 21, 2012
Goldman, Sachs & Co.
200 West Street
New York, NY 10282
J.P. Morgan
Securities LLC
383 Madison Avenue
New York, NY 10017
Merrill Lynch, Pierce,
Fenner &
Smith Incorporated
One Bryant Park
New York, NY 10036
As Representatives of the
several Underwriters
listed
in Schedule 1 hereto
Ladies
and Gentlemen:
Energizer Holdings, Inc., a Missouri corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as Representatives (the “Representatives”), $500,000,000 principal amount of its 4.700% Senior Notes due 2022
(the “Securities”). The Securities will be issued pursuant to an Indenture dated as of May 19, 2011 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture to be dated as of May 24,
2012 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) among the Company, the guarantors listed in Schedule 2 hereto (the “Guarantors”) and The Bank of New York
Mellon Trust Company, N.A., as trustee (the “Trustee”), and will be guaranteed on an unsecured senior basis by each of the Guarantors (the “Guarantees”).
The Company and the Guarantors have prepared and filed with the Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-181212), including a prospectus
(the “Basic Prospectus”), relating to the debt and other securities to be issued from time to time by the Company. The Company and the Guarantors have also
filed, or proposes to file, with the Commission pursuant to Rule 424 under the Securities Act a prospectus supplement specifically relating to the Securities (the “Prospectus
Supplement”). The registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the
time of its effectiveness, is referred to herein as the “Registration Statement”; and as used herein, the term “Prospectus” means the Basic Prospectus as supplemented by the prospectus supplement specifically
relating to the Securities and the Guarantees in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities and the term
“Preliminary Prospectus” means the preliminary prospectus supplement specifically relating to the Securities and the Guarantees together with the Basic Prospectus. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus. References herein to the Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein. The terms “supplement,” “amendment” and “amend” as used herein with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) subsequent to the
date of this Agreement which are deemed to be incorporated by reference therein. For purposes of this Agreement, the term “Effective Time” means the effective date of the Registration Statement with respect to the offering of the
Securities and the Guarantees, as determined for the Company pursuant to Section 11 of the Securities Act and Item 512 of Regulation S-K, as applicable.
At or prior to the time when sales of the Securities and the Guarantees were first made (the “Time of Sale”), the following information shall have been prepared (collectively, the
“Time of Sale Information”): the Preliminary Prospectus, as supplemented and amended by the written communications listed on Annex A hereto.
The Company and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and resale of the Securities and the Guarantees, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees to issue and sell the Securities to the several Underwriters
as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.066% of the principal amount thereof plus accrued interest, if any, from May 24, 2012 to the Closing Date (as
defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
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(b) The Company and the Guarantors acknowledge and agree that the Underwriters may offer and
sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter (a “Participating Affiliate”).
(c) The Company and the Guarantors acknowledge and agree that the Underwriters are acting solely in the capacity of arm’s length
contractual counterparties to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as financial advisors or fiduciaries to, or
agents of, the Company, the Guarantors or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby,
and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Company or the Guarantors with respect thereto. Any review by the Representatives or any Underwriter of the Company, the Guarantors, and the
transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Company, the Guarantors or any
other person.
2. Payment and Delivery. (a) Payment for and delivery of the Securities will be made at the offices
of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, NY 10017 at 10:00 A.M., New York City time, on May 24, 2012, or at such other time or place on the same or such other date, not later than the fifth business day thereafter,
as the Representatives and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(b) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The
Depository Trust Company, for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities
duly paid by the Company. The Global Note will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Company and the Guarantors. The Company and the Guarantors jointly and severally
represent and warrant to each Underwriter that:
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(a) Registration Statement and Prospectus. The Registration Statement is an
“automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use
of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the Company’s knowledge, been threatened by the Commission; as of the
Effective Time, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust
Indenture Act”), and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with the Underwriter
Information as defined in Section 7(b) hereof.
(b) Time of Sale Information. The Time of Sale Information, at the
Time of Sale and at the Closing Date did not and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with the Underwriter Information as defined in
Section 7(b) hereof. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company and the Guarantors (including
their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a
communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document
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not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Annex A to this Agreement as constituting the Time of Sale Information, (v) any electronic road show or other written communications and (vi) the documents listed on Annex B to this Agreement, in each case
approved in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby), does not conflict with the information contained in the Registration Statement, the Prospectus or the Time of Sale Information and, when taken together with the Preliminary Prospectus accompanying, or
delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in
reliance upon and in conformity with the Underwriter Information as defined in Section 7(b) hereof.
(d) Incorporated
Documents. The documents incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information, when filed with the Commission, conformed or will conform, as the case may be, in all material respects to the
requirements of the Exchange Act, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) Financial Statements. The financial statements and the
related notes thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus present fairly in all material respects the financial position of the Company and its subsidiaries as of the
dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby except as set forth in the notes thereto; and the other financial information included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus has been
derived from the accounting records of the Company and its subsidiaries and presents fairly in all material respects the information shown thereby.
(f) Status under the Securities Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times
specified in the Securities Act in connection with the offering of the Securities.
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(g) No Material Adverse Change. Since the date of the most recent financial
statements of the Company included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus (i) there has not been any material change in the long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or development involving a prospective change that has had, or
would reasonably be expected to have, a material adverse effect on the business, properties, management, financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or agreement that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in the case of each of clause (i), (ii) and (iii) above as otherwise disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus.
(h) Organization and Good Standing. The
Company and each of the Guarantors have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management,
financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company and the Guarantors of their obligations under the Securities and the Guarantees (a “Material
Adverse Effect”). The subsidiaries listed in Schedule 3 to this Agreement are, as of March 31, 2012, the only significant subsidiaries of the Company within the meaning of Rule 1-02(w) of Regulation S-X.
(i) Capitalization. The Company has an authorized capitalization as set forth in each of the Registration Statement, the Time of
Sale Information and the Prospectus under the heading “Capitalization”; and all the outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly by the Company (except, in the case of any foreign subsidiary, for directors’ qualifying shares), free and clear of any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party, except those that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(j) Due Authorization. The Company and each of the Guarantors have full right, power
and authority to execute and deliver this Agreement, the Securities, the Supplemental Indenture and each Guarantee (collectively, together with the Base Indenture, the “Transaction Documents”) and to perform their respective
obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly
and validly taken.
(k) The Indenture. The Base Indenture has been duly authorized, executed and delivered by the
Company and each of the Guarantors and has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability
(collectively, the “Enforceability Exceptions”). The Supplemental Indenture has been duly authorized by the Company and each of the Guarantors and, when duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, subject to the Enforceability Exceptions. The Base
Indenture conforms, and the Supplemental Indenture will conform on the Closing Date, in all material respects to the requirements of the Trust Indenture Act, and the rules and regulations of the Commission applicable to an indenture that is
qualified thereunder.
(l) The Securities and the Guarantees. The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the
Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors
in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors.
(n) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description
thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
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(o) No Violation or Default. Neither the Company nor any of the Guarantors is
(i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound
or to which any of the property or assets of the Company or any of the Guarantors is subject; or (iii) except as described in the Registration Statement, the Time of Sale Information and the Prospectus, in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(p) No Conflicts. The execution, delivery and
performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the Guarantees) and the consummation of the transactions contemplated by the
Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Guarantors pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of the Guarantors is a party or by which the Company or any
of the Guarantors is bound or to which any of the property or assets of the Company or any of the Guarantors is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company
or any of the Guarantors or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, (x) in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (y) in the case of clause (iii) above, for any such
violation that may arise under applicable state securities laws or rules or statutes in connection with the purchase and distribution of the Securities by the Underwriters.
(q) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required of the
Company or any Guarantor for the execution, delivery and performance by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the Guarantees) and
compliance by the Company and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except (i) as have been obtained or made and (ii) for such consents, approvals,
authorizations, orders and registrations or qualifications (A) as may be required under applicable state securities laws or any foreign laws or statutes in
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connection with the purchase and resale of the Securities by the Underwriters or (B) as described in the Registration Statement, the Time of Sale Information and the Prospectus or
(C) as may be required as a result of the legal or regulatory status of any person (other than the Company or its subsidiaries) because of any other facts specifically pertaining to such person.
(r) Legal Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus,
there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending, or, to the knowledge of the Company, threatened, to which the Company or any of its subsidiaries is or may be a party or, in the case of
investigations, to the knowledge of the Company, may reasonably be expected to be a party or to which any property of the Company or any of its subsidiaries is the subject or, in the case of investigations, to the knowledge of the Company, may
reasonably be expected to be the subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and no such investigations, actions, suits or proceedings are, to the knowledge of the Company and each
of the Guarantors, threatened or contemplated by any governmental or regulatory authority or threatened by others.
(s)
Independent Accountants. To the Company’s knowledge, after reasonable inquiry, PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries, is an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(t) Title to Real and Personal Property. Except as would not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect, the Company and its subsidiaries have good title in fee simple (in the case of owned real property) to, or have valid rights to lease or otherwise use, all items of real and personal property that are material to
the respective businesses of the Company and its subsidiaries, in each case, to the knowledge of the Company, free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) are shown on the
financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries included or incorporated by reference, or otherwise described or disclosed in the Registration Statement, the Time of Sale Information or the
Prospectus or (ii) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries.
(u) Title to Intellectual Property. The Company and/or its subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of
their respective businesses, except as would not reasonably be expected to
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result in a Material Adverse Effect and, to the Company’s knowledge, the conduct of their respective businesses will not conflict in any material respect with any such rights of others, and
the Company and its subsidiaries have not received any notice of any claim of infringement of or conflict with any such intellectual property rights of others that would reasonably be expected to result in a Material Adverse Effect.
(v) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, shareholders or other affiliates of the Company or any of its subsidiaries, on the other, that would be required by the Securities Act to be described in a registration statement to be
filed with the Commission and that is not so described in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(w) Investment Company Act. Neither the Company nor any of the Guarantors is, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as
described in each of the Registration Statement, the Time of Sale Information and the Prospectus none of them will be, an “investment company” or an entity “controlled” by an “investment company” within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(x) Taxes.
Each of the Company and its subsidiaries has filed all federal, state, local and foreign tax returns required to be filed by it through the date hereof and paid all taxes as shown thereon and all assessments received by it to the extent required to
be paid and not being contested in good faith, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect; and to the Company’s knowledge, except as otherwise disclosed in each of the Registration
Statement, the Time of Sale Information and the Prospectus, there is no tax deficiency that has been, or would reasonably be expected to be, asserted in writing against the Company or any of its subsidiaries or any of their respective properties or
assets that would reasonably be expected to have a Material Adverse Effect.
(y) Licenses and Permits. Except as
described in the Registration Statement, the Time of Sale Information and the Prospectus, the Company and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings
with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the
Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as
described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or
authorization that would not reasonably be expected to have a Material Adverse Effect or has any reason to
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believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except where such event would not reasonably be expected to have a Material Adverse
Effect.
(z) No Labor Disputes. (i) No labor disturbance by or dispute with employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company and each of the Guarantors, is contemplated or threatened and (ii) neither the Company nor any Guarantor is aware of any existing or imminent labor disturbance by, or dispute with, the
employees of any of the Company’s or any of the Company’s subsidiaries’ principal suppliers, contractors or customers, except with respect to clauses (i) and (ii) above as would not reasonably be expected to have a Material
Adverse Effect.
(aa) Compliance With Environmental Laws. Except as described in the Registration Statement, the Time
of Sale Information and the Prospectus, (i) the Company and its subsidiaries (x) are, and to the knowledge of the Company, at all prior times were, in compliance with any and all applicable federal, state, local and foreign laws (including
common law), rules, regulations, requirements, decisions, judgments, decrees and orders relating to the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”), (y) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals (collectively, “Approvals”) required of them under
applicable Environmental Laws to conduct their respective businesses, and (z) have not received notice of any actual or potential liability, or violation, under or relating to any Environmental Laws, including for the investigation,
remediation, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, other than with respect to such notices as have been resolved and for which no costs, obligations or damages remain, and have no knowledge of
any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws or any Approval, any related constraints on operating activities and any potential liabilities to third parties) of or relating to the Company or its subsidiaries, except in the case of each of (i) and
(ii) above, for any such failure to comply, or failure to receive required Approvals, or notice, or cost or liability, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and
(iii) except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, (x) there are no proceedings that are pending, or that are known by the Company to be contemplated, against the Company or
any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceedings which the Company reasonably believes will not result in monetary sanctions (exclusive of any interest or costs) of
$100,000 or more, (y) the Company and its subsidiaries are not aware of any issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes,
pollutants or contaminants, that would reasonably be expected to have a material effect on the
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capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the Company and its subsidiaries anticipates material capital expenditures
relating to any Environmental Laws.
(bb) Compliance With ERISA. Except as would not reasonably be expected to have a
Material Adverse Effect or as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, (i) each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders,
rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding
transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as
defined in Section 412 of the Code, whether or not waived, has occurred or is reasonably expected to occur; (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan as of the
end of the Company’s most recent fiscal year (determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected
to occur; and (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary
course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA).
(cc) Disclosure Controls. The Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is
designed to provide reasonable assurance that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure.
The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(dd) Accounting Controls. The Company and its subsidiaries maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
in all material respects with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and
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principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting principles. The Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s 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. Except as disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no material weaknesses in the Company’s internal controls.
(ee) Insurance. Except as would not reasonably be expected to have a Material Adverse Effect or as described in the
Registration Statement, the Time of Sale Information and the Prospectus, the Company and its subsidiaries are insured by insurers of recognized financial responsibility or are self-insured against such losses and risks and in such amounts as are
reasonable and consistent with sound business practices.
(ff) No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company and each of the Guarantors, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment.
(gg) Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all 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.
(hh) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”);
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and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ii) No Restrictions on Subsidiaries. Except as would not reasonably be expected (i) to have a Material Adverse Effect or a material adverse effect upon the ability of the Company and the
Guarantors to make payment upon the Securities at their stated maturity or (ii) as described in the Registration Statement, the Time of Sale Information and the Prospectus, no subsidiary of the Company is currently prohibited, directly or
indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(jj) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise
to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(kk) No Stabilization. Neither the Company nor any of the Guarantors has taken, directly or indirectly, any action designed to or
that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(ll) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the
Company as described in each of the Registration Statement, the Time of Sale Information and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(mm) Forward-Looking Statements. The Company has no actual knowledge that any forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in any of the Registration Statement, the Time of Sale Information or the Prospectus, at the time it was made or upon any reaffirmation thereof by
the Company, was false or misleading in any material respect.
(nn) Statistical and Market Data. Nothing has come to
the attention of the Company that has caused the Company to believe that the statistical and market-related data included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus is not
based on or derived from sources that are reliable and accurate in all material respects.
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(oo) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company
or, to the knowledge of the Company, after reasonable inquiry, any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
4. Further Agreements of the Company and the Guarantors. The Company and each of the Guarantors jointly and severally covenant and
agree with each Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the registration fees
for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date and (ii) file the Prospectus in a form approved by the
Underwriters with the Commission pursuant to Rule 424 under the Securities Act not later than the close of business on the second business day following the date of determination of the public offering price of the Securities or, if applicable, such
earlier time as may be required by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act. The Company will file any Issuer Free Writing Prospectus (including the Term Sheet in the form of Annex C to this Agreement) to the extent required
by Rule 433 under the Securities Act; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City
time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus (if applicable) as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the Securities as in the reasonable opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before
filing any amendment or supplement to the Registration Statement or the Prospectus with respect to the offering of the Securities, on or prior to the Closing Date, the Company will furnish to the Representatives and counsel for the Underwriters a
copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement
to which the Representatives reasonably object unless, in the case of a filing, the Company is required by law to make such filing.
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(d) Notice to the Representatives. During the Prospectus Delivery Period, the Company
will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the
Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within
the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a
purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and
(vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company
will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any of the Time of Sale Information, any Issuer Free Writing Prospectus,
any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will use its reasonable best efforts to obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as
a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Company will immediately notify the Underwriters thereof and forthwith prepare
and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to any of the Time of Sale
Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of
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Sale Information as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply
with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition
shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will immediately notify the
Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus
(or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented (including such document to be incorporated by reference therein) will
not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g) Blue Sky Compliance. The Company will use its commercially reasonable efforts in cooperation with the Underwriters to qualify the Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions in the United States as the Representatives shall reasonably request (and in such foreign jurisdictions as the Company and the Representatives shall mutually agree) and will continue such qualifications in effect so long
as required for the offering and resale of the Securities; provided that neither the Company nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(h) Earning Statement. The Company will make generally available to its security holders and the
Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with
the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement (it being understood, for the avoidance of doubt, that the Company may satisfy the requirement set forth in
this paragraph (h) through compliance with the requirements set forth in Rule 158(b)).
(i) Clear Market. During
the period from the date hereof through and including the date that is 15 days after the date hereof, the Company and each of the Guarantors will not, without the prior written consent of Goldman, Sachs & Co., offer, announce the intention
to sell, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or any of the Guarantors and having a tenor of more than one year.
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(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds”.
(k) No Stabilization. Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
(l) Filing of Exchange Act Documents. The Company will
file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery Period.
(m) Record Retention. The Company and the Guarantors will, pursuant to reasonable procedures developed in good faith,
retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters.
(a) Each Underwriter hereby
represents and agrees that it has not and will not, and any Participating Affiliates have not and will not, use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus”, as defined in Rule 405
under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that, solely as a result of use by such Underwriter or Participating Affiliate, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer
Free Writing Prospectus listed on Annex A to this Agreement or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and
approved by the Company in advance in writing.
(b) Notwithstanding the foregoing the Underwriters may use a term sheet
substantially in the form of Annex C to this Agreement without the consent of the Company.
(c) Each Underwriter hereby
represents and agrees that it is not, and any Participating Affiliates are not, subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
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6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter
to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective amendment to the Registration Statement is required to
be filed under the Securities Act, such post-effective amendment shall have become effective, and the Representatives shall have received notice thereof, not later than 5:00 P.M., New York City time, on the date of this Agreement; no order
suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the
Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities
Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company and the Guarantors contained herein shall be
true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company, the Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the
execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities issued or guaranteed by the Company or any of its subsidiaries by any “nationally
recognized statistical rating organization”, as such term is defined in Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt securities issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall
exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Registration Statement, the Time of Sale Information and the
Prospectus.
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(e) Officer’s Certificate. The Representatives shall have received on and as of
the Closing Date a certificate of an executive officer of the Company and of each Guarantor who is reasonably satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of
Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(a) and 3(b) hereof are true and correct in all material respects, (ii) confirming that, to the knowledge of such officers,
the other representations and warranties of the Company and the Guarantors in this Agreement are true and correct in all material respects and that the Company and the Guarantors have, in all material respects, complied with all agreements and
satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of
the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement,
the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Company and the Guarantors. Mark S. LaVigne, Vice President, General Counsel
and Secretary of the Company, shall have furnished to the Representatives, at the request of the Company and the Guarantors, his written opinion and negative assurance statement, dated the Closing Date, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set forth in Annex D-1 hereto.
(h) Opinion and
10b-5 Statement of Outside Counsel for the Company and the Guarantors. Bryan Cave LLP, special outside counsel for the Company and the Guarantors, shall have furnished to the Representatives, at the request of the Company and the Guarantors, an
opinion and negative assurance statement, dated the Closing Date, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex D-2 hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing
Date, an opinion and negative assurance statement of Davis Polk & Wardwell LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents
and information as they may reasonably request to enable them to pass upon such matters.
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(j) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the
Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees.
(k) Good Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good
standing of the Company and the Guarantors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of
telecommunication, from the appropriate governmental authorities of such jurisdictions.
(l) Additional Documents. On
or prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company and each of the
Guarantors jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or caused
by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the Underwriter Information as defined in Section 7(b) hereof.
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(b) Indemnification of the Company. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, each of the Guarantors, each of their respective directors and officers and each person, if any, who controls the Company or any of the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including, without limitation, legal fees and other
expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with the following information: in the section captioned “Underwriting” in the Prospectus, (i) the information set forth in the second to last sentence of the third paragraph of text,
concerning the terms of the offering by the Underwriters, (ii) the second sentence of the fifth paragraph and (iii) the sixth, seventh and eighth paragraphs, concerning short sales, stabilizing transactions and purchases to cover positions
created by short sales by the Underwriters (the “Underwriter Information”).
(c) Notice and
Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 7 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by
such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under this Section 7. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent
of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall
pay the fees and expenses of such proceeding and shall pay the reasonable fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition
to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person
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and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are incurred against presentation of written invoices or statements therefor. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by Goldman, Sachs & Co. and any such separate firm for the Company, the Guarantors, their respective directors and officers and any control persons of the Company and the Guarantors shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to
or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution. If the indemnification provided for in paragraphs (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company and the Guarantors on the one hand and the
Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the
Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses, but after deducting the underwriting discounts and commissions) received by the
Company from the sale of the Securities and the total discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the
Securities. The relative fault of the Company and the
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Guarantors on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the Company or any Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding anything to the contrary, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this
Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f)
Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if
after the execution and delivery of this Agreement and on or prior to the Closing Date (a) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (b) trading of any
securities issued or guaranteed by the Company or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter market; (c) a general moratorium on commercial banking activities shall have been declared by federal
or New York State authorities; or (d) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery, of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
24
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter defaults
on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms
contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled but not obligated to, for a further
period of 36 hours, seek to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either
the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Time of Sale Information, the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information or the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If,
after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and, if undertaken by the Company, the Company as provided in paragraph (a) above, the
aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase
the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after
giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such
Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without
liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Company or the Guarantors, except that the Company and each of the Guarantors
will continue to be liable for the payment of expenses as set forth in Section 10 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
25
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Guarantors or any non-defaulting Underwriter for damages caused by its default.
10. Payment of
Expenses. (a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company and each of the Guarantors jointly and severally agree to pay or cause to be paid all costs and
expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus
(including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s and the
Guarantors’ counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the state or foreign
securities or blue sky laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the reasonable related fees and expenses of counsel for the Underwriters);
(vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including reasonable related fees and expenses of any counsel to such parties); (viii) all expenses
and application fees incurred in connection with any filing with, and clearance of any offering by, the Financial Industry Regulatory Authority; and (ix) all expenses incurred by the Company in connection with any “road show”
presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 8(b),
(ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement (other than pursuant to clause (a),
(c) and (d) of Section 8), the Company and each of the Guarantors jointly and severally agree to reimburse the Underwriters for all out-of-pocket costs and expenses (including the reasonable fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby and the Company shall not in any event be liable to any of the Underwriters for damages on account of loss of anticipated profit from the
sale of the Securities.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of
26
each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Company, the
Guarantors and the Underwriters contained in this Agreement or made by or on behalf of the Company, the Guarantors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment
for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company, the Guarantors or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term
“affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and
(c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
14.
Miscellaneous. (a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by Goldman, Sachs & Co. on behalf of the Underwriters, and any such action taken by Goldman, Sachs & Co.
shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives at Goldman, Sachs & Co., 200 West
Street, New York, New York 10282, Attention: Registration Department; J. P. Morgan Securities LLC, 383 Madison Avenue, New York, New York, 10017; and Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, New York,
10036 (fax: (646) 855-5958), Attention: High Grade Transaction Management/Legal. Notices to the Company and the Guarantors shall be given to them at 533 Maryville University Drive, St. Louis, MO 63141 (fax: (314) 985-2223); Attention: Mark
S. LaVigne, Esq., Vice President, General Counsel and Secretary with a copy to Bryan Cave LLP, One Metropolitan Square, 211 North Broadway, Suite 3600, St. Louis, Missouri 63102, Attention: R. Randall Wang, Esq. (fax: (314) 552-8149).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New
York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any
standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
27
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space
provided below.
28
|
|
|
| Very truly yours, |
|
| ENERGIZER HOLDINGS, INC. |
|
|
| By |
|
/s/ Daniel J. Sescleifer |
| Name: |
|
Daniel J. Sescleifer |
| Title: |
|
Executive Vice President and |
|
|
Chief Financial Officer |
|
|
|
| EVEREADY BATTERY COMPANY, INC. |
| ENERGIZER BATTERY MANUFACTURING, INC. |
| ENERGIZER BATTERY, INC. |
| ENERGIZER PERSONAL CARE, LLC |
| PLAYTEX PRODUCTS, LLC |
| PLAYTEX MANUFACTURING, INC. |
| SCHICK MANUFACTURING, INC. |
| SUN PHARMACEUTICALS, LLC |
| TANNING RESEARCH |
| LABORATORIES, LLC |
|
|
|
|
|
| By |
|
/s/ Daniel J. Sescleifer |
| Name: |
|
Daniel J. Sescleifer |
| Title: |
|
Executive Vice President and |
|
|
Chief Financial Officer |
|
|
|
| ENERGIZER INTERNATIONAL, INC. |
|
|
| By |
|
/s/ Daniel J. Sescleifer |
| Name: |
|
Daniel J. Sescleifer |
| Title: |
|
Vice President |
[Signature Page – Underwriting Agreement]
|
|
|
| Accepted: May 21, 2012 |
|
| GOLDMAN, SACHS & CO. |
| J.P. MORGAN SECURITIES LLC |
| MERRILL LYNCH, PIERCE, FENNER & SMITH |
| INCORPORATED |
|
| For themselves and on behalf of the |
| several Underwriters listed |
| in Schedule 1 hereto. |
|
| GOLDMAN, SACHS & CO. |
|
|
| By |
|
/s/ Goldman, Sachs & Co. |
|
|
Goldman, Sachs & Co. |
|
|
|
| J. P. MORGAN SECURITIES LLC |
|
|
| By |
|
/s/ Maria Sramek |
|
|
Authorized Signatory |
|
|
Maria Sramek |
|
|
Executive Director |
|
|
|
| MERRILL LYNCH, PIERCE, FENNER & SMITH |
| INCORPORATED |
|
|
| By |
|
/s/ Brendan Hanley |
|
|
Authorized Signatory |
30
Schedule 1
|
|
|
|
|
| Underwriter |
|
Principal Amount |
|
| Goldman, Sachs & Co. |
|
$ |
145,000,000 |
|
| J.P. Morgan Securities LLC |
|
|
145,000,000 |
|
| Merrill Lynch, Pierce, Fenner & Smith Incorporated |
|
|
145,000,000 |
|
| Mitsubishi UFJ Securities (USA), Inc. |
|
|
32,500,000 |
|
| SunTrust Robinson Humphrey, Inc. |
|
|
32,500,000 |
|
|
|
|
|
|
|
|
| Total |
|
$ |
500,000,000 |
|
S1-1
Schedule 2
List of the Company’s Subsidiaries
Eveready Battery Company, Inc. (DE)
Energizer Battery Manufacturing, Inc. (DE)
Energizer Battery, Inc. (DE)
Energizer International, Inc. (DE)
Energizer Personal Care, LLC (DE)
Playtex Products, LLC (DE)
Playtex Manufacturing, Inc. (DE)
Schick Manufacturing, Inc. (DE)
Sun Pharmaceuticals, LLC (DE)
Tanning Research Laboratories, LLC (DE)
S2-1
Schedule 3
List of the Company’s Significant Subsidiaries
Energizer Australia Pty.
Ltd. (Australia)
Energizer Battery Company, Inc. (DE)
Schick Asia LTD (Hong Kong)
Energizer International, Inc. (DE)
S3-1
ANNEX A
Additional Time of Sale Information
Term sheet containing the terms of the
Securities, substantially in the form of Annex C.
A-1
ANNEX B
Issuer Free Writing Prospectuses not included in the Time of Sale Information
None
B-1
ANNEX C
|
|
|
| |
|
Issuer Free Writing Prospectus |
| Pricing Term Sheet |
|
Filed Pursuant to Rule 433 |
| Dated May 21, 2012 |
|
Registration Statement No. 333-181212 |
|
|
Supplementing the Preliminary |
|
|
Prospectus Supplement dated May 21, 2012 |
|
|
and the Prospectus dated May 7, 2012 |
ENERGIZER HOLDINGS, INC.
4.700% Senior Notes due 2022
The information in this pricing term sheet relates only
to Energizer Holdings, Inc.’s offering (the “Offering”) of its 4.700% Senior Notes due 2022 and should be read together with (i) the preliminary prospectus supplement dated May 21, 2012 relating to the Offering and filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Preliminary Prospectus Supplement”) and (ii) the accompanying prospectus dated May 7, 2012, including the documents incorporated by reference therein,
which is included in Registration Statement No. 333-181212 (the “accompanying Prospectus”).
|
|
|
| Issuer:
|
|
Energizer Holdings, Inc. |
|
|
| Size: |
|
$500,000,000 |
|
|
| Guarantee: |
|
The notes will be guaranteed by existing and future subsidiaries that are guarantors under any of the Company’s credit agreements or other indebtedness for borrowed
money. |
|
|
| Maturity: |
|
May 24, 2022 |
|
|
| Price to Public: |
|
99.716% |
|
|
| Coupon (Interest Rate): |
|
4.700% |
|
|
| Yield to Maturity: |
|
4.736% |
|
|
| Spread to Benchmark Treasury: |
|
T+300 bps |
|
|
| Benchmark Treasury: |
|
UST 1.75% due May 2022 |
|
|
| Benchmark Treasury Price and Yield: |
|
100-04 / 1.736% |
|
|
| Interest Payment Dates: |
|
May 24 and November 24, commencing on November 24, 2012 |
|
|
| Make-whole Call: |
|
T + 45 basis points |
|
|
| Trade Date: |
|
May 21, 2012 |
|
|
| Settlement Date: |
|
May 24, 2012 |
|
|
| CUSIP: |
|
29266R AC2 |
C-1
|
|
|
| ISIN: |
|
US29266RAC25 |
|
|
| Joint Book-Running Managers: |
|
Goldman, Sachs & Co.
J.P. Morgan Securities LLC Merrill Lynch,
Pierce, Fenner & Smith Incorporated |
|
|
| Co-Managers |
|
Mitsubishi UFJ Securities (USA), Inc. SunTrust Robinson Humphrey, Inc. |
|
|
| Commissions and Discounts: |
|
Any notes sold by the underwriters to securities dealers may be sold at a discount from the Price to Public of up to 0.40% of the principal amount of notes. Any such securities
dealers may resell any notes purchased from the underwriters to certain other brokers or dealers at a discount from the Price to Public of up to 0.25% of the principal amount of notes. |
|
|
|
|
The following table shows the public offering price, underwriting discount and proceeds before expenses to the Issuer. |
|
|
|
|
|
|
|
|
|
| |
|
Per Note |
|
|
Total |
|
| Public offering price |
|
|
99.716 |
% |
|
$ |
498,580,000 |
|
| Underwriting discounts |
|
|
00.650 |
% |
|
$ |
3,250,000 |
|
| Proceeds, before expenses, to the Issuer |
|
|
99.066 |
% |
|
$ |
495,330,000 |
|
The Issuer has filed a registration statement (including the Preliminary Prospectus Supplement and the accompanying
Prospectus) with the Securities and Exchange Commission, or SEC, for the Offering to which this pricing term sheet relates. Before you invest, you should read the Preliminary Prospectus Supplement and the accompanying Prospectus in that registration
statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and the 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 Preliminary Prospectus Supplement and the accompanying Prospectus if you request it by calling Goldman, Sachs & Co. at 1-866-471-2526 or by emailing
prospectus-ny@ny.email.gs.com, J.P. Morgan Securities LLC collect at 1-212-834-4533, or Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-800-294-1322 or by emailing dg.prospectus_requests@baml.com.
The information in this pricing term sheet supplements and amends the information in the Preliminary Prospectus Supplement and the accompanying
Prospectus, and should be read in conjunction with the Preliminary Prospectus Supplement and the accompanying Prospectus.
ANY DISCLAIMERS
OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS PRICING TERM SHEET AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS PRICING TERM SHEET BEING SENT VIA BLOOMBERG OR ANOTHER
EMAIL SYSTEM.
[Remainder of Page Intentionally Blank]
ANNEX D-1
[Form of Opinion of General Counsel for the Company and the Guarantors]
(-)
Based solely on recently dated good standing certificates from the Secretaries of State of the applicable jurisdictions, each of the Company and the Guarantors is validly existing as a corporation or limited liability company, as applicable, in good
standing under the laws of its respective jurisdiction of incorporation or formation.
(-) Each of the Company and the
Guarantors has all requisite corporate or limited liability company power to own, lease and operate its material properties and assets and conduct its business in all material respects as now being conducted and as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus.
(-) Based solely on recently dated good standing certificates
from the Secretaries of State of the applicable jurisdictions, each of the Company and the Guarantors is duly qualified or admitted to transact business and is in good standing as a foreign corporation in the jurisdictions set forth in Exhibit A
hereto.
(-) The execution and delivery by the Company and each of the Guarantors of the Transaction Documents and the
consummation by the Company and each of the Guarantors of its obligations thereunder are within the Company’s or the Guarantor’s corporate or limited liability company power and authority and have been duly authorized by all necessary
corporate or limited liability company action on the part of the Company and each of the Guarantors.
(-) The execution and
delivery by the Company and each of the Guarantors of each of the Transaction Documents to which each is a party and the consummation by the Company and each of the Guarantors of the transactions contemplated thereby do not result in (a) any
violation by the Company or any of the Guarantors of (i) any provision of applicable U.S. Federal or Missouri state statute or regulation that I, based on my experience, reasonably recognize as applicable to the Company or the Guarantors in a
transaction of this type, or (ii) to my knowledge, any order, writ, judgment or decree of any U.S. Federal or Missouri State court or governmental authority or regulatory body having jurisdiction over the Company or any of the Guarantors or any
of their material properties that names or is specifically directed to the Company or any such Guarantor, or (b) to my knowledge, a breach or default or require the creation or imposition of any security interest or lien upon any of the
Company’s or any of the Guarantor’s properties pursuant to any material agreement, contract or instrument to which the Company or any Guarantor is a party or by which it is bound, except in each such case for such violations, breaches or
defaults that would not be reasonably expected to result in a Material Adverse Effect. For purposes of the foregoing, I have assumed that the only material agreements, contracts or instruments
D1-1
to which the Company or any Guarantor is a party or by which it is bound are those listed as exhibits to the Company’s most recent Annual Report on Form 10-K or any agreement filed on a
subsequent Quarterly Report on Form 10-Q or Form 8-K (the “Material Agreements”).
(-) No consent, approval,
authorization or other action by, and no notice to or filing with, any U.S. Federal or Missouri state governmental authority or regulatory body pursuant to any U.S. Federal or Missouri state statute that I, based on my experience, recognize as
applicable to the Company or any of the Guarantors in a transaction of this type, is required for the due execution, delivery and consummation by the Company or any of the Guarantors of the transactions contemplated by the Transaction Documents,
except for the filings and other actions required pursuant to Federal and state securities or blue sky laws, as to which I express no opinion.
(-) Except as otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, to my knowledge, there is no litigation nor any governmental proceedings, current, pending
or threatened that would be required to be described in a registration statement under the Securities Act.
(-) The
descriptions in the Registration Statement, the Time of Sale Information and the Prospectus of statutes, legal, governmental and regulatory proceedings and contracts and other documents are accurate in all material respects, except for the
statements under the heading “Material United States federal income and estate tax consequences” as to which I express no opinion.
(-) The documents incorporated by reference in the Registration Statement, the Time of Sale Information or Prospectus or any further amendment or supplement thereto made by the Company prior to the date
hereof (the “Incorporated Documents”) (other than the financial statements, notes and schedules or any other financial, statistical or accounting data included or incorporated by reference in or omitted from the Incorporated
Documents, as to which I express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act.
(-) To my knowledge, neither the Company nor any Guarantor is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any Material Agreement; or (iii) except as described in the Registration Statement, the
Time of Sale Information and the Prospectus, in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
D1-2
During the preparation of the Registration Statement, the Time of Sale Information and the Prospectus, I or
members of my staff have participated in conferences with officers and other representatives of the Company, representatives of the independent accountants for the Company and you and your representatives and counsel, at which conferences the
contents of the Registration Statement, the Time of Sale Information and the Prospectus and related matters were discussed, reviewed and revised. Although I am not passing upon, and do not assume any responsibility for, the accuracy, completeness or
fairness of such contents (except as expressly indicated in paragraph [ ] above) and have not made any independent investigation or verification thereof, on the basis of the information which was
developed in the course thereof, considered in light of my understanding of applicable law and the experience I have gained through my practice thereunder, this is to advise you that nothing has come to my attention which causes me to believe that
(i) the Registration Statement, at the Effective Time (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration Statement at the Effective Time), contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Time of Sale Information, as of [ Eastern Time]
on May 21, 2012 (which you have informed me is a time prior to the first use of the term sheet attached as Annex C to the Underwriting Agreement) and, as amended or supplemented, if applicable, as of the date hereof, or the Prospectus or any
amendment or supplement thereto, as of its date and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
D1-3
ANNEX D-2
[Form of Opinion of Outside Counsel for the Company and the Guarantors]
(-) The
Registration Statement became effective under the Securities Act and the Base Indenture was qualified under the Trust Indenture Act; the Preliminary Prospectus was filed with the Commission pursuant to Rule 424(b) under the Securities Act on
May 21, 2012; and the Prospectus was filed with the Commission pursuant to Rule 424(b) under the Securities Act on May , 2012; and, based solely upon an oral acknowledgment by the staff of
the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act, and, to our knowledge, no proceedings therefor have been initiated or threatened by the Commission.
(-) The Registration Statement and the Prospectus (other than (i) any documents incorporated by reference therein, as to which we
express no opinion, or (ii) the financial statements and related notes and schedules and the other financial, statistical and accounting data included or incorporated by reference therein, or omitted therefrom, as to which we express no
opinion), when they were filed with the Commission, comply as to form in all material respects with the requirements of the Securities Act and the Trust Indenture Act (other than the Statement of Eligibility and Qualification of the Trustee on Form
T-1, as to which we express no opinion).
(-) The Indenture has been duly authorized, executed and delivered by the Company
and the Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee) constitutes a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in
accordance with its terms, subject to the Enforceability Exceptions.
(-) The Securities have been duly authorized by the
Company and, when executed by the Company and authenticated by the Trustee in the manner provided in the Indenture and issued and delivered to the Underwriters, in exchange for payment therefor in accordance with the terms of this Agreement, will
constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and entitled to the benefits of the Indenture.
(-) The Guarantees are in the form contemplated by the Indenture, have been duly authorized by the Guarantors and, when executed by the
Guarantors in the manner provided in the Indenture, and issued and delivered to the Underwriters, in exchange for payment therefor in accordance with the terms of this Agreement, will constitute valid and binding obligations of the Guarantors,
enforceable against the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and entitled to the benefits of the Indenture.
D2-1
(-) This Agreement has been duly authorized, executed and delivered by the Company and the
Guarantors.
(-) Each Transaction Document conforms in all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the Prospectus.
(-) The execution and delivery by the Company and
each of the Guarantors of each of the Transaction Documents to which each is a party and the consummation by the Company and each of the Guarantors of the transactions contemplated thereby do not result in (i) any violation by the Company or
any of the Guarantors of any provision of applicable U.S. Federal, New York or Missouri state statute or regulation that we, based on our experience, reasonably recognize as applicable to the Company or any of the Guarantors in a transaction of this
type, except for such violations that would not be reasonably expected to result in a Material Adverse Effect or (ii) any violation by the Company or any of the Guarantors of the provisions of the articles of incorporation or by-laws or similar
organizational documents of the Company or any Guarantor.
(-) No consent, approval, authorization or other action by, and no
notice to or filing with, any U.S. Federal or Missouri state governmental authority or regulatory body pursuant to any U.S. Federal or Missouri state statute that we, based on our experience, recognize as applicable to the Company or any of the
Guarantors in a transaction of this type, is required for the due execution, delivery and consummation by the Company or any of the Guarantors of the transactions contemplated by the Transaction Documents, except where the failure to obtain or make
such consents, approvals, authorizations, actions, notices or filings (i) would not reasonably be expected to have a Material Adverse Effect and (ii) would not materially adversely affect the rights and remedies of the holders of the
Securities or prohibit the issuance of the Securities, and except such consents, approvals, authorizations, actions, notices or filings which (x) have been obtained or made, or (y) may be required under Federal and state securities or Blue
Sky Laws, as to which, in each case, we express no opinion.
(-) The statements in the Time of Sale Information and the
Prospectus under the heading “Material United States Federal Income and Estate Tax Consequences,” insofar as such statements constitute a summary of United States federal tax consequences of the purchase, beneficial ownership, and
disposition of the Securities, are accurate in all material respects.
(-) Neither the Company nor any Guarantor is, nor will
any of them be upon the issuance of the Securities and the application of the proceeds therefrom as set forth under the caption “Use of proceeds” in the Time of Sale Information and the Prospectus, an “investment company” or an
entity “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
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During the preparation of the Registration Statement, the Time of Sale Information and the
Prospectus, we have participated in conferences with officers and other representatives of the Company, representatives of the independent accountants for the Company and you and your representatives and counsel, at which conferences the contents of
the Registration Statement, the Time of Sale Information and the Prospectus and related matters were discussed, reviewed and revised. Although we are not passing upon, and do not assume any responsibility for, the accuracy, completeness or fairness
of such contents (except as expressly indicated in paragraphs [ ] above) and have not made any independent investigation or verification thereof, on the basis of the information
which was developed in the course thereof, considered in light of our understanding of applicable law and the experience we have gained through our practice thereunder, this is to advise you that nothing has come to our attention which causes us to
believe that (i) the Registration Statement, at the Effective Time (including the information, if any, deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration Statement at the Effective Time), contained any untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Time of Sale Information, as of
[ ] Eastern Time on May 21, 2012 (which you have informed us is a time prior to the first use of the term sheet attached as Annex C to the Underwriting Agreement)
and, as amended or supplemented, if applicable, as of the date hereof, or the Prospectus or any amendment or supplement thereto, as of its date and as of the date hereof, contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than, in each case, the financial statements and related
notes, financial, statistical and accounting data and supporting schedules contained or incorporated by reference therein, as to which such counsel need express no belief).
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