EX-1.1
Exhibit 1.1
EXECUTION VERSION
NUCOR CORPORATION
(a Delaware corporation)
4.000% Notes due 2023
5.200% Notes due 2043
UNDERWRITING AGREEMENT
Dated: July 24, 2013
NUCOR CORPORATION
(a Delaware corporation)
4.000% Notes due 2023
5.200% Notes due 2043
UNDERWRITING AGREEMENT
July 24, 2013
Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
J.P. Morgan Securities LLC
383
Madison Avenue
New York, NY 10179
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, NY 10036
As Representatives of the several Underwriters
named in Schedule A hereto
Ladies and
Gentlemen:
Nucor Corporation, a Delaware corporation (the “Company”), confirms its agreement with Citigroup Global
Markets Inc. (“Citi”), J.P. Morgan Securities LLC (“J.P. Morgan”) and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“BofA Merrill Lynch”, and, together with Citi, J.P. Morgan and each of the other
Underwriters named in Schedule A hereto, collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Citi, J.P. Morgan and BofA Merrill Lynch are
acting as representatives (in such capacity, the “Representatives” or “you”) with respect to the issuance and sale by the Company and purchase by the Underwriters of up to $500,000,000 aggregate principal amount of its 4.000%
Notes due August 1, 2023 (the “2023 Notes”) and up to $500,000,000 aggregate principal amount of its 5.200% Notes due August 1, 2043 (the “2043 Notes” and, together with the 2023 Notes, the “Securities”) on
the terms and conditions stated
herein and in Schedule B hereto. The Securities are to be sold to each Underwriter, acting severally and not jointly, in the respective principal amounts as are set forth in Schedule A
hereto opposite the name of such Underwriter. The Securities are to be issued pursuant to an Indenture dated as of January 12, 1999 as modified or supplemented by the Sixth Supplemental Indenture to be dated as of July 29, 2013
(collectively, the “Indenture”), between the Company and The Bank of New York Mellon, as trustee (the “Trustee”). The Securities and the Indenture are more fully described in the Prospectus referred to below.
The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf
registration statement on Form S-3 (Registration No. 333-176786), including the related base prospectus, which registration statement became effective upon filing under Rule 462(e) of the rules and regulations of the Commission (the “1933
Act Regulations”) under the Securities Act of 1933, as amended (the “1933 Act”). Such registration statement covers, among other securities, the registration of the Securities under the 1933 Act. Promptly after execution and delivery
of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. Any information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of and included in such registration statement pursuant to Rule 430B is referred
to as “Rule 430B Information.” The prospectus dated September 12, 2011 (the “Base Prospectus”) together with the preliminary prospectus supplement dated July 24, 2013 used in connection with the offering of the
Securities, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is herein called the “Preliminary Prospectus.” Such registration statement, at any given time, including the
amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a
part thereof or included therein by the 1933 Act Regulations at such time, is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective is herein called the “Original
Registration Statement.” The Base Prospectus together with the final prospectus supplement dated July 24, 2013 in the form first furnished to the Underwriters for use in connection with the offering of the Securities, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, is herein called the “Prospectus.” For purposes of this Agreement, all references to the Registration Statement, the Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to mean and include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) or
its Interactive Data Electronic Applications system.
All references in this Agreement to financial statements and schedules
and other information which is “contained,” “included” or “stated” in the Registration Statement, the Preliminary Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be part of or included in the Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
2
filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”) which is incorporated by reference in the Registration Statement, the Preliminary
Prospectus or the Prospectus, as the case may be.
Section 1. Representations and Warranties.
(a) Representations and Warranties of the Company. The Company represents and warrants to and agrees with each of the
Underwriters as of the Applicable Time referred to in Section 1(a) hereof and as of the Closing Time referred to in Section 2(b) hereof, that:
(i) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or
any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Securities in reliance on the exemption provided by Rule 163 of the 1933 Act Regulations and
(D) at the date hereof, the Company was and is a “well-known seasoned issuer,” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”). The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations objecting to the use of the automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time thereafter that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(ii) Registration Statement, Prospectus and Disclosure at Time of Sale. The Original Registration
Statement became effective upon filing with the Commission under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”) on September 12, 2011. No stop order suspending the effectiveness of the Registration Statement nor any notice
objecting to its use has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, have been threatened by the Commission, and any request on the part of the
Commission for additional information has been complied with.
To the extent that any offer that is a written
communication relating to the Securities was made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act Regulations),
such communication has been filed with the Commission in accordance with the exemption provided by Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise complied with the requirements of Rule 163,
3
including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each amendment thereto became effective, at each deemed
effective date with respect to the offering of the Securities, as determined for the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, and at the Closing Time, the Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations and the Trust Indenture Act of 1939, as amended (the “1939 Act”) and the rules and regulations of the Commission under the 1939 Act (the “1939 Act
Regulations”), and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
Neither the Prospectus nor any amendments or supplements thereto, at their respective dates and at the Closing Time
included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The Preliminary Prospectus and the Prospectus, when so filed with the Commission, complied in all material
respects with the 1933 Act Regulations and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with this offering were identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Applicable Time,
(i) the Disclosure Package and (ii) each electronic road show, approved by the Company, when taken together as a whole with the Disclosure Package, did not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 2:45 P.M. (Eastern time) on July 24, 2013 or such other time as agreed by the
Company and the Underwriters.
“Disclosure Package” means (i) the Preliminary Prospectus used
most recently prior to the Applicable Time, (ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule C hereto, (iii) the final term sheet prepared and filed pursuant to Section 3(b) hereto, if any, and (iv) any
other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Free Writing Prospectus” means a free writing prospectus, as defined in Rule 405.
4
“Issuer Free Writing Prospectus” means any “issuer free
writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”).
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives as described
in Section 3(c), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein or to the part of the Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the trustee under the 1939 Act.
(iii) Incorporated Documents. The documents
incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus on or prior to the Closing Time, at the time they were filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act, and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), as applicable, and, when read together with the
other information included in the Preliminary Prospectus and the Prospectus, did not and will not contain an untrue statement of a material fact or did not and will not omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(iv) Independent Registered Public Accounting Firm.
PricewaterhouseCoopers LLP, who has certified the audited financial statements, the notes related thereto and schedules included or incorporated by reference in the Registration Statement, are an independent registered public accounting firm with
respect to the Company as required by the 1933 Act and the 1933 Act Regulations.
(v)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(vi) Financial Statements. The financial statements included in or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, together with the related
schedules and notes, present fairly, in all material respects, the consolidated financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and the cash flows of the Company and its
consolidated subsidiaries for the periods specified. Such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the
periods involved. The financial
5
statement schedules, if any, included in the Registration Statement present fairly, in all material respects, in accordance with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included or incorporated by reference in the Disclosure Package and the Prospectus present fairly, in all material respects, the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements included or incorporated by reference in the Registration Statement. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration
Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(vii) No Material Adverse Change in Business. Since the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein or contemplated thereby, there has not been (A) any change which (i) would reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of the transactions contemplated hereby or (ii) would reasonably be expected to have a material adverse effect on the financial condition, operations, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business (a “Material Adverse Effect”), (B) any transaction entered into by the Company or the Significant Subsidiary,
other than in the ordinary course of business, that is material to the Company and its subsidiaries, considered as one enterprise, or (C) any material change in the capital stock or long-term debt of the Company or the Significant Subsidiary,
or any dividend (other than ordinary quarterly dividends and supplemental dividends declared, paid or made in the ordinary course of business) or distribution of any kind declared, paid or made by the Company on its capital stock.
(viii) Good Standing of the Company. The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with corporate power and authority under such laws to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is authorized or qualified to transact business as a foreign corporation in each other jurisdiction in which it owns or leases property of a nature, or transacts business of a type, that
would make such authorization or qualification necessary, except to the extent that such failure would not have a Material Adverse Effect.
(ix) Good Standing of Significant Subsidiary. Nucor-Yamato Steel Company (Limited Partnership), a Delaware limited partnership (the “Significant Subsidiary” as such term is defined in
Rule 1-02 under Regulation S-X), is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware with partnership power and authority under such laws to
own, lease and operate its properties and conduct its business; and the Significant Subsidiary is authorized or qualified to transact business as a foreign entity in each jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such
6
authorization or qualification necessary, except to the extent that such failure would not have a Material Adverse Effect.
(x) Investment Company. The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended (the “1940 Act”).
(xi) Authorization of Indenture. The Indenture and any supplement thereto, or board resolution or action of
authorized officers of the Company, setting forth the terms of the Securities has been duly authorized by the Company and duly qualified under the 1939 Act and, when duly executed and delivered by the Company and the Trustee, will constitute a valid
and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Indenture will conform in all material respects to the description thereof in the Disclosure Package and the Prospectus.
(xii) Authorization of Securities. The Securities have been duly authorized by the Company. When executed, authenticated, issued and delivered in the manner provided for in the Indenture and sold
and paid for as provided in this Agreement, the Securities will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); and the Securities will conform in all material respects to the description thereof in the
Disclosure Package and the Prospectus.
(xiii) Absence of Defaults and Conflicts. Neither the Company
nor the Significant Subsidiary is in violation of its charter or bylaws, or similar organizational documents, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it may be bound or to which any of its properties may be subject, except for such defaults that would not individually or in the
aggregate result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the Indenture by the Company, the issuance and delivery of the Securities, the consummation by the Company of the transactions contemplated
in this Agreement, in the Prospectus and in the Registration Statement and compliance by the Company with the terms of this Agreement and the Indenture, have been duly authorized by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the charter or bylaws of
7
the Company, and do not and will not conflict with, or result in a breach 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 under (A) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to which the Company is a party or by which it may be bound or to which
any of its properties may be subject or (B) any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of
their respective properties (except for, in each case, such violations, conflicts, breaches or defaults or liens, charges or encumbrances that would not individually or in the aggregate have a Material Adverse Effect).
(xiv) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, registration,
qualification or decree of any government, governmental instrumentality or court (other than under those required and obtained under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the securities or blue sky laws of the various states)
is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, the issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of this Agreement or the Indenture by the Company.
(xv) Absence
of Proceedings. Except as disclosed in the Disclosure Package and the Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of
the Company, threatened against or affecting the Company or any subsidiary that the Company reasonably believes would individually or in the aggregate result in a Material Adverse Effect, or that would materially adversely affect the consummation of
the transactions contemplated in this Agreement. There are no pending legal or governmental proceedings that are required under the 1933 Act to be described in the Registration Statement, the Disclosure Package or the Prospectus that are not so
described in the Registration Statement, the Disclosure Package and the Prospectus.
(xvi) Accuracy of
Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Disclosure Package, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto that are
not described and filed as required.
(xvii) Insurance. The Company and each of its subsidiaries are
insured by insurers of nationally recognized financial responsibility against such losses and risks and in such amounts as are prudent in the businesses in which they are engaged; and neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at a cost that would not have a Material Adverse Effect.
(xviii) Possession of Licenses and Permits. The Company and the Significant Subsidiary each has all governmental
licenses, permits, certificates, consents,
8
exemptions, franchises, orders, approvals and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as presently conducted, except where failure to own or possess such Governmental Licenses would not have a Material Adverse Effect);
all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, individually or in the
aggregate, result in a Material Adverse Effect; and neither the Company nor the Significant Subsidiary has received any notice of proceedings relating to revocation of any such Governmental Licenses, except where such revocation would not have a
Material Adverse Effect.
(xix) Possession of Intellectual Property. The Company and the Significant
Subsidiary each owns or possesses, or can acquire on reasonable terms, adequate patents, patent licenses, inventions and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures) trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on its business in all material respects as presently conducted, and neither the Company nor the
Significant Subsidiary has received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property which would render any Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would result in a Material Adverse Effect.
(xx) Absence of Labor Dispute. There are no existing, or to the knowledge of the Company, imminent
labor disputes or disturbances with employees of the Company or the Significant Subsidiary which the Company reasonably believes would individually or in the aggregate, have a Material Adverse Effect.
(xxi) Absence of Market Stabilization. Prior to the date hereof, neither the Company nor any of its affiliates has
taken, directly or indirectly, any action which is designed to or which has constituted or which would reasonably be expected to cause or result in stabilization or manipulation of the price of the Securities in connection with the offering.
(xxii) Environmental Laws and Other Regulations. Neither the Company nor any of its subsidiaries has
violated in any material respect any foreign, federal, state or local law or regulation relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), any provisions of the Employee Retirement Income Security Act of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act of 1977, as amended, or the rules and regulations promulgated thereunder (the
“FCPA”), except for such violations which, individually or in the aggregate, would not have a Material Adverse Effect.
9
In the ordinary course of business, the Company and its subsidiaries conduct
periodic reviews of the effect of Environmental Laws on their assets and operations, and, on the basis of such reviews, the Company has concluded that there are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permits, licenses, consents, authorizations or other approvals, any related constraints on operating
activities and any potential liabilities to third parties) in excess of reserves that have been established which would, individually or in the aggregate, have a Material Adverse Effect.
There is no pending claim, cause of action or written notice from any person or entity alleging potential liability
(including, without limitation, alleged or potential liability or investigatory costs, cleanup costs, governmental response costs, natural resource damages, property damages, personal injuries or penalties) of the Company or any of its subsidiaries
arising out of, based on or resulting from (A) the presence or release into the environment of any Hazardous Material (as defined below in this paragraph) at any location, whether or not owned by the Company or any of its subsidiaries, as the
case may be, or (B) any violation of any Environmental Law, which, in either case, would, individually or in the aggregate, have a Material Adverse Effect. The term “Hazardous Material” means (i) any “hazardous
substance” as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, (ii) any “hazardous waste” as defined by the Resource Conservation and Recovery Act, as amended,
(iii) any petroleum or petroleum product, (iv) any polychlorinated biphenyl, and (v) any pollutant or contaminant or hazardous dangerous or toxic chemical, material, waste or substance regulated under or within the meaning of any
other law relating to protection of human health or the environment or imposing liability or standards of conduct concerning any such chemical material, waste or substance.
(xxiii) Accounting Controls and Disclosure Controls. Each of the Company and the Significant Subsidiary maintains a
system of internal accounting controls sufficient to provide reasonable assurance that (1) transactions are executed in accordance with management’s general or specific authorization; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (3) access to assets is permitted only in accordance with management’s general or specific authorization; (4) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (5) the interactive data in eXtensible Business Reporting Language incorporated by
reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable
thereto. Except as described in the Preliminary Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over
financial reporting.
10
The Company and its consolidated subsidiaries employ disclosure controls and
procedures that are designed to ensure that information required to be disclosed by the Company in the reports that it files with or submits to the Commission under the 1934 Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to
allow timely decisions regarding disclosure.
(xxiv) Compliance with the Sarbanes-Oxley Act. The Company
is in compliance, in all material respects, with the applicable provisions of the Sarbanes-Oxley Act of 2002, as amended.
(xxv) Capitalization. The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; and all of the outstanding partnership interests of the Significant Subsidiary owned by the Company have been duly authorized and validly issued, are fully paid and non-assessable and are beneficially
owned by the Company, free and clear of any pledge, lien, security interest, charge, claim or encumbrance of any kind.
(xxvi) Title to Property. The Company and its subsidiaries have good and marketable title in fee simple to all real property which they own and good title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except as would not individually or in the aggregate have a Material Adverse Effect; and any real property and buildings held under lease by the Company and its subsidiaries are held by
them under valid and enforceable leases except as would not individually or in the aggregate have a Material Adverse Effect.
(xxvii) No Unlawful Payments. None of the Company, any of its subsidiaries or, to the best of the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a material violation by such persons of either (1) the FCPA, including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (2) the U.K. Bribery Act 2010 (the
“Bribery Act”), and the Company, its subsidiaries and, to the best of the Company’s knowledge, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and the Bribery Act and have instituted
and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxviii) Compliance with Money Laundering Act. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in
11
all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency in such jurisdictions (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 Company’s knowledge, threatened.
(xxix) No Conflict with OFAC Laws. 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, or representative of the Company or any of its subsidiaries acting on its or their
behalf, is an individual or entity (“Person”) currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of
Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company
located, organized or resident in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds from the issuance and sale of the Securities, or lend, contribute or otherwise make available
such proceeds to any subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner
that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(xxx) Taxes. The Company has timely filed or caused to be filed all material tax returns which, to the best of the
knowledge of the Company, are required to be filed by it or its subsidiaries, and the Company has paid or caused to be paid (a) all taxes shown to be due and payable on said returns; or (b) all taxes shown to be due and payable on any
assessments in which it has received notice made against it or any of its property and all other material taxes required to be paid by the Company or any of its subsidiaries, other than any taxes, fees or other charges with respect to which the
failure to pay, in the aggregate, would not have a Material Adverse Effect or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided.
(b) Officer’s Certificate. Any certificate signed by any officer of the Company or any of its subsidiaries and
delivered to you or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters; Closing.
12
(a) Securities. On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of 99.276% (with respect
to the 2023 Notes) and of 99.019% (with respect to the 2043 Notes) of the principal amount thereof, the principal amount of Securities set forth opposite the name of such Underwriter in Schedule A, plus any additional principal amount of
Securities that such Underwriter may become obligated to purchase pursuant to Section 10 of this Agreement.
(b)
Payment. Payment of the purchase price for, and delivery of, the Securities shall be made at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or at such other place as
shall be agreed upon by the Company and you, at 10:00 A.M. (Eastern time) on the third full business day after the date of this Agreement (unless postponed pursuant to Section 10), or at such other time not more than ten full business days
thereafter as you and the Company shall determine (such date and time of payment and delivery being herein called the “Closing Time”). Payment shall be made to the Company by wire transfer of immediately available funds to an account
designated by the Company, against delivery to you for the respective accounts of the several Underwriters of the Securities to be purchased by them.
(c) Denominations; Registration. The Securities to be purchased by the Underwriters shall be in such denominations and registered in such names as you may request in writing at least one
full business day before the Closing Time. The Securities will be made available in New York City for examination by you not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests; Payment of Filing Fees. During the period in which a
prospectus relating to the Securities is required to be delivered by an Underwriter or would be required but for Rule 172 under the 1933 Act, the Company, subject to Section 3(b), will comply with the requirements of Rule 430B and will notify
the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement or new registration statement relating to the Securities shall become effective, or any supplement to the
Prospectus or any amended Prospectus relating to the Securities shall have been filed, (ii) of the receipt of any comments from the Commission relating to the Registration Statement or the Prospectus, (iii) of any request by the Commission
for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for
additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new registration statement or of any notice objecting to its use or of any order preventing or
suspending the use of the Preliminary Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or, upon becoming aware, of the initiation or threatening of any proceedings for any of such
purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
13
Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will
effect the filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. During the period in which a prospectus relating to the Securities is required to be delivered by an Underwriter or would be
required but for Rule 172 under the 1933 Act, the Company will make every reasonable effort to prevent the issuance of any stop order or the occurrence of any suspension of the Registration Statement and, if any stop order is issued, or a suspension
occurs, or any notice of objection is received, to obtain the lifting thereof or relief from such stop order, suspension or objection at the earliest possible moment, including, if necessary, by filing an amendment to the Registration Statement or a
new registration statement. The Company shall pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) of
the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b)).
(b) Filing of Amendments and Exchange Act Documents; Preparation of Final
Term Sheet. During the period in which a prospectus relating to the Securities is required to be delivered by an Underwriter or would be required but for Rule 172 under the 1933 Act, the Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement or new registration statement relating to the Securities or any amendment, supplement or revision to either the Preliminary Prospectus or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, and the Company will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall reasonably object. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the
Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of
time prior to such proposed filing and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object. The Company will prepare a final term sheet (the “Final Term Sheet”)
reflecting the final terms of the Securities, in form and substance reasonably satisfactory to the Representatives and contained in Schedule B hereto, and shall file such Final Term Sheet as an Issuer Free Writing Prospectus as soon as practicable
after the pricing of the Securities.
(c) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities by any Underwriter or dealer, any event shall occur or condition exist as a result of which it is
14
necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order
that the Disclosure Package and the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or to file a new registration statement or amend or supplement the Disclosure Package
or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b), such amendment, supplement or new
registration statement as may be necessary to correct such untrue statement or omission or to comply with such requirements. The Company will use its reasonable best efforts to have such amendment, supplement or new registration statement declared
effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Securities) and the Company will furnish to the Underwriters such number of copies of such amendment, supplement or new registration
statement as the Underwriters may reasonably request. During the period in which a prospectus relating to the Securities is required to be delivered by an Underwriter or would be required but for Rule 172 under the 1933 Act, if at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained or incorporated by reference in the
Registration Statement (or any other registration statement relating to the Securities), the Prospectus or the Preliminary Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(d)
Delivery of the Registration Statement. The Company has furnished or will furnish to you, without charge, as many signed copies of the Original Registration Statement and of all amendments thereto, copies of all exhibits and documents
filed therewith or incorporated by reference therein or otherwise deemed to be a part thereof (other than documents required to be filed under the 1934 Act that upon filing are deemed to be incorporated by reference therein and through the end of
the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities) and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish
to you, for each of the Underwriters, one conformed copy of the Original Registration Statement and of each amendment thereto (including documents incorporated by reference in the Prospectus but without exhibits, other than documents required to be
filed under the 1934 Act that upon filing are deemed to be incorporated by reference therein). The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e)
Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, an electronic copy of the Preliminary Prospectus, and the Company hereby consents to the distribution of such Preliminary Prospectus to
prospective investors and to
15
the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus is required to be delivered
under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f) Blue Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may reasonably designate and will maintain such qualifications in effect for a period of not less than one year from the
date hereof; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company will also supply the Underwriters with such information as is necessary for the determination of the
legality of the Securities for investment under the laws of such jurisdictions as the Underwriters may request.
(g)
Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide
to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Rating
of Securities. The Company shall take all reasonable action necessary to enable Moody’s Investors Service, Inc. and Standard & Poor’s Ratings Services, a Division of The McGraw-Hill Companies, Inc. to provide their
respective credit ratings of the Securities issued by the Company.
(i) Use of Proceeds. The Company will use
the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption “Use of Proceeds.”
(j) Reporting Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(k)
Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company
and the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus required to be filed with the
Commission; provided, however, that prior to the preparation of the Final Term Sheet in accordance with Section 3(b), the Underwriters are authorized to use information with respect to the final terms of the Securities in
communications conveying information relating to
16
the offering to prospective investors. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and has complied and will comply with the requirements of Rule 433 applicable to
any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
Section 4. Payment of Expenses.
(a) Expenses. The
Company will pay and bear all costs and expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and any
schedules or exhibits and any documents incorporated therein by reference), as originally filed and as amended, the Disclosure Package and the Prospectus and any amendments or supplements thereto, and the cost of furnishing copies thereof in
accordance with Section 3 of this Agreement to the Underwriters, (ii) the preparation, printing and distribution of this Agreement, the Indenture and the Securities, (iii) the delivery of the Securities to the Underwriters,
(iv) the fees and disbursements of the Company’s counsel and accountants, (v) the qualification of the Securities under the applicable securities laws in accordance with Section 3(f) and any filing for review of the offering with
the Financial Industry Regulatory Authority (“FINRA”), including filing fees and fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the qualification of the Securities under the applicable
securities or “blue sky” laws of the various states and other jurisdictions, (vi) any fees charged by rating agencies for rating the Securities and (vii) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee, in connection with the Indenture and the Securities.
(b) Termination of Agreement.
If this Agreement is terminated by you in accordance with the provisions of Section 5 or Section 9(a)(i) or (a)(iii) (but only with respect to the Company’s Securities), the Company shall reimburse the Underwriters for all their out-of-pocket expenses, including the fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Securities that they have respectively agreed to purchase
pursuant to this Agreement are subject to the accuracy of the representations and warranties and other statements of the Company contained herein or in certificates of any officer of the Company or the Significant Subsidiary delivered pursuant to
the provisions hereof, to the performance by the Company of its obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement; Filing of Prospectus; Payment of Filing Fee. The Registration Statement has
become effective and at the Closing Time no stop order suspending the effectiveness of the Registration Statement or notice objecting to its use shall have been issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to your knowledge or the knowledge of the Company, shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the satisfaction
of counsel for the Underwriters. A
17
prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and become effective in accordance with the requirements of Rule 430B). The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule
456(1)(i) of the 1933 Act Regulations and otherwise in accordance with Rules 456(b) and 457(r) or the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinions of Moore & Van Allen PLLC, Counsel for the Company. At the Closing Time, you shall have received signed opinions of Moore & Van Allen PLLC, counsel for the
Company, dated as of the Closing Time, together with signed or reproduced copies of such opinions for each of the other Underwriters, in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation organized, existing and in good standing under the laws of the State of Delaware, with
power and authority to own, lease and operate its properties and conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Agreement.
(ii) The Significant Subsidiary is a limited partnership organized, existing and in good standing under the laws of the
State of Delaware, and has the power and authority under such laws to own, lease and operate its properties and conduct its business.
(iii) All of the outstanding partnership interests of the Significant Subsidiary owned by the Company have been duly authorized and validly issued and are fully paid and are beneficially owned by the
Company, free and clear of any pledge, lien, security interest, charge, claim or encumbrance of any kind.
(iv)
The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except to the extent that enforcement thereof is
contrary to public policy regarding the exculpation of criminal violations, intentional harm, acts of gross negligence or recklessness or violations of securities laws and regulations.
(v) The Securities have been duly authorized by the Company and, assuming that the Securities have been duly authenticated
by the Trustee in the manner described in its certificate delivered to you at the Closing Time (which fact such counsel need not determine by an inspection of the Securities), the Securities have been duly
18
executed, issued and delivered by the Company and constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) and except to the extent that enforcement thereof is
contrary to public policy regarding the exculpation of criminal violations, intentional harm, acts of gross negligence or recklessness or violations of securities laws and regulations.
(vi) There are no statutes or regulations, or any pending or threatened legal or governmental proceedings known to such
counsel that are required to be described in the Disclosure Package or the Prospectus that are not described as required, or any material contracts or documents of a character required to be described or referred to in the Registration Statement,
the Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not described, referred to or filed as required.
(vii) No default, known to such counsel, exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the Registration Statement, the Prospectus or the Disclosure Package or filed as an exhibit to the Registration Statement, except for such defaults that would not
individually or in the aggregate have a Material Adverse Effect.
(viii) The execution, delivery and
performance of this Agreement and the Indenture by the Company, the issuance and delivery of the Securities, the consummation by the Company of the transactions contemplated in this Agreement, in the Indenture, in the Disclosure Package, in the
Prospectus and in the Registration Statement, and the compliance by the Company with the terms of this Agreement, the Indenture and the Securities do not and will not result in any violation of the charter or bylaws of the Company or the limited
partnership agreement of the Significant Subsidiary, and do not and will not conflict with, or result in a breach 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 the Significant Subsidiary under (A) any contract, indenture, mortgage, loan agreement, note, lease or any other agreement or instrument known to such counsel, to which the Company or
the Significant Subsidiary is a party or by which it may be bound or to which any of its properties may be subject, (B) any existing applicable law, rule or regulation (other than the securities or blue sky laws of the various states, as to
which such counsel need express no opinion), or (C) any judgment, order or decree of any government, governmental instrumentality or court, known to such counsel, having jurisdiction over the Company or the Significant Subsidiary or any of
their respective properties, in each case excepting such conflicts, breaches or defaults or liens, charges or encumbrances that would not individually or in the aggregate have a Material Adverse Effect.
19
(ix) The descriptions in the Disclosure Package and the Prospectus of the
statutes, regulations, legal or governmental proceedings, contracts or other documents therein described are accurate and fairly summarize the information required to be shown in all material respects.
(x) This Agreement has been duly authorized, executed and delivered by the Company.
(xi) The Indenture has been duly qualified under the 1939 Act.
(xii) The Securities and the Indenture conform in all material respects as to legal matters to the descriptions thereof in
the Disclosure Package and the Prospectus.
(xiii) No filing, authorization, approval, consent or license of
any government, governmental instrumentality or court (other than those required and obtained under the 1933 Act, the 1939 Act and the securities or blue sky laws of the various states), is required for the valid authorization, issuance, sale and
delivery of the Securities or for the execution, delivery or performance of the Agreement and the Indenture by the Company.
(xiv) The Original Registration Statement became effective under the 1933 Act on September 12, 2011; the required filing of the Preliminary Prospectus and the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b); any required filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, no stop
order suspending the effectiveness of the Registration Statement or any notice objecting to its use, known to such counsel, has been issued and no proceedings for that purpose, known to such counsel, have been instituted or are pending or are
contemplated under the 1933 Act.
(xv) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement thereto (except for the financial statements, the notes and schedules thereto, other financial or earnings information and statistical or accounting data, and assessments of or
reports on the effectiveness of internal control over financial reporting included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), as of their respective effective or issue dates, appear
on their face to have been appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the Indenture appears on its face to have been appropriately responsive in all material respects to
the requirements of the 1939 Act and the 1939 Act Regulations.
(xvi) The documents incorporated by reference
in the Disclosure Package and the Prospectus (except for the financial statements, the notes and schedules thereto, other financial or earnings information and statistical or accounting data, and assessments of or reports on the effectiveness of
internal control over financial reporting included or incorporated by reference therein or omitted therefrom, as to which such counsel need
20
express no opinion), as of the dates they were filed with the Commission, appear on their face to have been appropriately responsive in all material respects to the requirements of the 1934 Act
and the 1934 Act Regulations.
(xvii) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be an “investment company” as defined in the 1940 Act.
In giving such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the States
of New York and North Carolina, the Delaware General Corporation Law, the Delaware Revised Uniform Limited Partnership Act and the federal law of the United States, upon opinions of other counsel, who shall be counsel satisfactory to counsel for the
Underwriters, in which case the opinion shall state that they believe you and they are entitled to so rely. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Significant Subsidiary and certificates of public officials.
In addition,
such counsel shall provide a separate letter to the Underwriters giving assurance that such counsel have participated in the preparation of the Registration Statement, the Disclosure Package and the Prospectus and are familiar with or have
participated in the preparation of the documents incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and no facts have come to the attention of such counsel to lead them to believe that (A) the
Registration Statement, including the Rule 430B Information (except for the financial statements, the notes and schedules thereto, other financial or earnings information and statistical or accounting data, and assessments of or reports on the
effectiveness of internal control over financial reporting included or incorporated by reference therein or omitted therefrom and the Statement of Eligibility of the Trustee on Form T-1 filed in connection
with such Registration Statement, as to which such counsel need express no opinion), at the time the Registration Statement became effective and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933
Act Regulations prior to or at the Closing Time, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B)(i) the Prospectus
or any amendment or supplement thereto (except for the financial statements, the notes and schedules thereto, other financial or earnings information and statistical or accounting data, and assessments of or reports on the effectiveness of internal
control over financial reporting included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), as of the date of the Prospectus and as of the Closing Time, or (ii) the Disclosure Package,
as of the Applicable Time, included or include an untrue statement of a material fact or omitted 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, or (C) the documents incorporated by reference in the Disclosure Package and the Prospectus (except for the financial statements, the notes and schedules thereto, other financial or earnings information and statistical or accounting
data, and assessments of or reports on the effectiveness of internal control over financial reporting included therein or omitted therefrom, as to which such counsel need express no opinion, and except to the extent that any statement
21
therein is modified or superseded in the Disclosure Package and the Prospectus), as of the dates they were filed with the Commission, included an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Opinion of Counsel for the Underwriters. At the Closing Time, you shall have received the favorable opinion of Shearman & Sterling LLP, counsel for the Underwriters, dated as of
the Closing Time, together with signed or reproduced copies of such opinion for each of the other Underwriters with respect to such matters as the Representatives may require. In giving such opinion such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of New York, the Delaware General Corporation Law and the federal law of the United States, upon the opinions of counsel satisfactory to you. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Significant Subsidiary and certificates of public officials; provided that such certificates have
been delivered to the Underwriters.
(d) Officers’ Certificate. At the Closing Time, (i) the
Registration Statement, the Disclosure Package and the Prospectus, as they may then be amended or supplemented, shall contain all statements that are required to be stated therein under the 1933 Act and the 1933 Act Regulations and in all
material respects shall conform to the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the 1939 Act Regulations, and neither the Registration Statement, the Disclosure Package nor the Prospectus, as they may
then be amended or supplemented, shall contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) since the time of execution of
this Agreement or since the respective dates as of which information is given in the Prospectus and the Disclosure Package, there shall not have been any material adverse change in the business, operations or financial condition of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (iii) no action, suit or proceeding shall be pending or, to the knowledge of the Company, threatened against the Company or any
subsidiary of the Company that would be required to be set forth in the Disclosure Package and the Prospectus other than as set forth therein and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or
any subsidiary of the Company before or by any government, governmental instrumentality or court, domestic or foreign, that could result in any material adverse change in the business, operations or financial condition of the Company and its
subsidiaries, considered as one enterprise, other than as set forth in the Disclosure Package and the Prospectus, (iv) the Company shall have complied with all agreements and satisfied all conditions on its part to be performed or satisfied
relating to the transactions contemplated by this Agreement, the Indenture, the Registration Statement, the Disclosure Package and the Prospectus at or prior to the Closing Time and (v) the other representations and warranties of the Company
set forth in Section 1(a) shall be accurate as though expressly made at and as of the Closing Time. At the Closing Time, you shall have received a certificate of the Chief Executive Officer or an Executive Vice President, and the Treasurer or
Assistant Treasurer or Controller, of the Company, dated as of the Closing Time, to such effect.
22
(e) Independent Registered Public Accounting Firm’s Comfort Letter. At
the date of this Agreement, you shall have received from PricewaterhouseCoopers LLP a letter, dated as of the date of this Agreement, in form and substance reasonably satisfactory to you and PricewaterhouseCoopers LLP, together with signed or
reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in Independent Registered Public Accounting Firm’s “comfort letters” to underwriters with
respect to the financial statements and certain financial information incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and the specified date referred to therein shall be a date not more than three
days prior to the date of this Agreement.
(f) Bring-down Comfort Letter. At the Closing Time, you shall have
received from PricewaterhouseCoopers LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to
shall be a date not more than two business days prior to the Closing Time.
(g) Rating Agencies. Subsequent to
the execution and delivery of this Agreement and prior to the Closing Time, there shall not have been any downgrading, nor any notice given of any intended or potential downgrading or of a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company’s debt securities, including the Securities, by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the 1934 Act.
(h) Additional Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with all
such documents, certificates and opinions as they may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated in this Agreement and the matters referred to in Section 5(c) and in
order to evidence the accuracy and completeness of any of the representations, warranties or statements of the Company, the performance of any of the covenants of the Company, or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to the Closing Time in connection with the authorization, issuance and sale of the Securities as contemplated in this Agreement shall be reasonably satisfactory in form and substance to you and to counsel
for the Underwriters.
(i) Termination of Agreement. If any of the conditions specified in this Section 5
shall not have been fulfilled when and as required by this Agreement, this Agreement may be terminated by you on notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any
other party, except as provided in Section 4. Notwithstanding any such termination, the provisions of Sections 1, 6, 7, 8 and 16 shall remain in effect.
Section 6. Indemnification.
(a) Indemnification of the
Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers and employees of each Underwriter and each person, if any, who controls such Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
23
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the Rule 430B Information, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not misleading, or arising out of an untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, including, but not
limited to, the Final Term Sheet, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 6(d) hereof) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and disbursements of counsel chosen by you), as
reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of the Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the
indemnity agreement contained in Section 6(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (including any amendment thereto),
including the Rule 430B Information, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by
such Underwriter through you expressly for use therein.
24
(c) Actions Against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) hereof, counsel to the indemnified parties shall be selected by the Representatives and, in the case of parties indemnified pursuant to Section 6(b) hereof, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action and, at its option, may assume the defense thereof, with counsel reasonably satisfactory to the indemnified party,
provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party.
No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect
of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to
Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) hereof effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received
25
notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement. The indemnified party shall promptly reimburse the indemnifying party for all amounts advanced to it pursuant to this Section 6(d) hereof (unless it is entitled to such amounts
under Section 7 hereof) if it shall be finally judicially determined that such indemnified party was not entitled to indemnification hereunder and such loss, liability, claim, damage or expense arose out of (i) an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the indemnified party expressly for use in the Registration Statement (or any amendment thereto), including
the Rule 430B Information or any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or (ii) a fraudulent misrepresentation (within the meaning of Section 11 of the 1933
Act) by the indemnified party.
Section 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason held to be unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement 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) above but also the relative fault of the
Company, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the
Company and the total underwriting discount and commission received by the Underwriters, in each case as set forth on the cover of or in the Prospectus bear to the aggregate initial public offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and
the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation
26
which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each director, officer and employee of the Underwriters shall have the same rights to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of Securities set forth opposite their respective names in Schedule A hereto and not
joint.
Section 8. Representations, Warranties and Agreements to Survive Delivery. All representations,
warranties, indemnities, agreements and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain operative and in full force and effect regardless of any investigation made
by or on behalf of the Company, any Underwriter or any person who controls the Company or any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and will survive delivery of and payment for the
Securities.
Section 9. Termination of Agreement.
(a) Termination Generally. You may terminate this Agreement, by notice to the Company, at any time at or prior to the
Closing Time, (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Disclosure Package, any material adverse change in the business, operations or financial
condition of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities involving the United States or escalation thereof or other calamity or crisis or any change in national or international political, financial or economic conditions, in each case the
effect is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities (iii) if trading in any
27
securities of the Company has been suspended or materially limited by the Commission or FINRA or if trading generally on the New York Stock Exchange (the “NYSE”) has been materially
suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by the NYSE or by order of the Commission, FINRA or any other governmental authority, (iv) a
material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or (v) if a banking moratorium has been declared by either federal, New York or North Carolina authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of
any party to any other party, except to the extent provided in Section 4. Notwithstanding any such termination, the provisions of Sections 1, 6, 7, 8 and 16 shall survive such termination and remain in full force and effect.
Section 10. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time to
purchase the Securities that it or they are obligated to purchase pursuant to this Agreement (the “Defaulted Securities”), you shall have the right, within 36 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms set forth in this Agreement; if,
however, the non-defaulting Underwriters have not completed such arrangements within such 36-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of the
Securities to be purchased pursuant to this Agreement, each non-defaulting Underwriter shall be obligated, each severally and not jointly, to purchase the full amount thereof in the proportions that their
respective Securities underwriting obligation proportions bear to the underwriting obligations of all non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased pursuant to this Agreement, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of this Agreement, either the
non-defaulting Underwriters or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for a Underwriter under this Section 10.
Section 11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to
have been duly given if delivered, mailed or transmitted by
28
any standard form of telecommunication. Notices to the Underwriters and the Company shall be directed to the addresses specified below.
To the Company:
Nucor Corporation
1915 Rexford Road
Charlotte, NC 28211
Attention: James D. Frias
Telecopy No.: (704) 943-7203
To the Underwriters:
Citigroup Global Markets Inc.
388 Greenwich Street New York, NY 10013
Attention: General Counsel
Telecopy No.: (212) 816-7912
and
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Attention: High Grade Syndicate Desk
– 3rd floor
Telecopy No.: (212) 834-6081
and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York, NY 10020
Attention: High Grade Transaction Management/Legal
Telecopy No.: (646) 855-5958
Section 12. Parties. This
Agreement herein set forth is made solely for the benefit of the several Underwriters, the Company and, to the extent expressed, any person who controls the Company or any of the Underwriters within the meaning of Section 15 of the
1933 Act, the directors, officers and employees of the Underwriters and the directors of the Company, its officers who have signed the Registration Statement, and their respective executors, administrators, successors and assigns and, subject
to the provisions of Section 10, no other person shall acquire or have any right under or by virtue of this Agreement. The term “successors and assigns” shall not include any purchaser, as such purchaser, from any of the several
Underwriters of the Securities. All of the obligations of the Underwriters hereunder are several and not joint.
29
Section 13. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction each Underwriter is and has been acting
solely as a principal and is not the agent or fiduciary of the Company, or its stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company
with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with
respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ
from those of the Company, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with
such transaction or the process leading thereto.
Section 14. Integration. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
Section 15. Representation of Underwriters. The Representatives will act for the several Underwriters in connection with the transactions contemplated by this Agreement, and any action under
or in respect of this Agreement taken by the Representatives will be binding upon all Underwriters.
Section 16.
Governing Law and Time. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of conflicts of laws. Unless otherwise indicated, specified times of the
day refer to New York City time.
Section 17. Effect of Headings. The headings herein are included for
convenience only and shall not affect the construction hereof.
Section 18. Counterparts. This Agreement may be
executed in one or more counterparts, and when a counterpart has been executed by each party, all such counterparts taken together shall constitute one and the same agreement.
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Company and the several Underwriters in accordance with its terms.
|
|
|
|
|
| Very truly yours, |
|
| NUCOR CORPORATION |
|
|
| By: |
|
/s/ James D. Frias |
|
|
Name: |
|
James D. Frias |
|
|
Title: |
|
Executive Vice President & Chief Financial Officer |
CONFIRMED AND ACCEPTED
as of the date first above written:
|
|
|
|
|
| CITIGROUP GLOBAL MARKETS INC. |
|
|
| By: |
|
/s/ Jack D. McSpadden, Jr. |
|
|
Name: |
|
Jack D. McSpadden, Jr. |
|
|
Title: |
|
Managing Director |
|
| J.P. MORGAN SECURITIES LLC |
|
|
| By: |
|
/s/ Robert Bottamedi |
|
|
Name: |
|
Robert Bottamedi |
|
|
Title: |
|
Vice President |
|
| MERRILL LYNCH, PIERCE, FENNER & SMITH |
|
INCORPORATED |
|
|
| By: |
|
/s/ Laurie Campbell |
|
|
Name: |
|
Laurie Campbell |
|
|
Title: |
|
Managing Director |
For themselves and as Representatives of the several Underwriters named in Schedule A hereto.
SCHEDULE A
|
|
|
|
|
| Underwriter |
|
Principal amount of 2023 Notes |
|
| Citigroup Global Markets Inc. |
|
$ |
110,000,000 |
|
| J.P. Morgan Securities LLC |
|
$ |
110,000,000 |
|
| Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
|
$ |
110,000,000 |
|
| Deutsche Bank Securities Inc. |
|
$ |
37,500,000 |
|
| Wells Fargo Securities, LLC |
|
$ |
37,500,000 |
|
| PNC Capital Markets LLC |
|
$ |
30,000,000 |
|
| The Williams Capital Group, L.P. |
|
$ |
20,000,000 |
|
| U.S. Bancorp Investments, Inc. |
|
$ |
15,000,000 |
|
| Fifth Third Securities, Inc. |
|
$ |
10,000,000 |
|
| Lloyds Securities Inc. |
|
$ |
10,000,000 |
|
| RBC Capital Markets, LLC |
|
$ |
10,000,000 |
|
| Total |
|
$ |
500,000,000 |
|
|
|
|
|
|
| Underwriter |
|
Principal amount of 2043 Notes |
|
| Citigroup Global Markets Inc. |
|
$ |
110,000,000 |
|
| J.P. Morgan Securities LLC |
|
$ |
110,000,000 |
|
| Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
|
$ |
110,000,000 |
|
| Deutsche Bank Securities Inc. |
|
$ |
37,500,000 |
|
| Wells Fargo Securities, LLC |
|
$ |
37,500,000 |
|
| PNC Capital Markets LLC |
|
$ |
30,000,000 |
|
| The Williams Capital Group, L.P. |
|
$ |
20,000,000 |
|
| U.S. Bancorp Investments, Inc. |
|
$ |
15,000,000 |
|
| Fifth Third Securities, Inc. |
|
$ |
10,000,000 |
|
| Lloyds Securities Inc. |
|
$ |
10,000,000 |
|
| RBC Capital Markets, LLC |
|
$ |
10,000,000 |
|
| Total |
|
$ |
500,000,000 |
|
SCHEDULE B
Final Term Sheet
Filed Pursuant to Rule 433
Registration Statement No. 333-176786
July 24, 2013
NUCOR CORPORATION
$500,000,000 4.000% Notes due 2023
$500,000,000 5.200% Notes due 2043
|
|
|
| Issuer: |
|
Nucor Corporation |
|
|
| Security: |
|
4.000% Notes due 2023 (the “2023 Notes”) 5.200% Notes due 2043 (the “2043 Notes”) |
|
|
| Size: |
|
$500,000,000 for the 2023 Notes
$500,000,000 for the 2043 Notes |
|
|
| Trade Date: |
|
July 24, 2013 |
|
|
| Settlement Date: |
|
July 29, 2013 |
|
|
| Maturity Date: |
|
August 1, 2023 for the 2023 Notes August 1, 2043 for the 2043 Notes |
|
|
| Coupon: |
|
4.000% for the 2023 Notes
5.200% for the 2043 Notes |
|
|
| Price to Public: |
|
99.926% of face amount for the 2023 Notes 99.894% of face amount for the 2043 Notes |
|
|
| Yield to Maturity: |
|
4.009% for the 2023 Notes
5.207% for the 2043 Notes |
|
|
| Spread to Benchmark Treasury: |
|
T+140bps for the 2023 Notes
T+155bps for the 2043 Notes |
|
|
| Benchmark Treasury: |
|
1.750% due May 15, 2023 for the 2023 Notes 3.125% due February 15, 2043 for the 2043 Notes |
|
|
| Benchmark Treasury Price and Yield: |
|
92-19+ / 2.609% for the 2023 Notes 90-14 / 3.657% for the 2043 Notes |
|
|
| Interest Payment Dates: |
|
February 1 and August 1, commencing February 1, 2014 for the 2023 Notes February 1 and August 1, commencing February 1, 2014 for the 2043 Notes |
|
|
| Make Whole Call: |
|
T+25bps for the 2023 Notes (before May 1, 2023) T+25bps for the 2043 Notes (before February 1, 2043) |
|
|
| Par Call: |
|
On or after May 1, 2023 for the 2023 Notes On or after February 1, 2043 for the 2043 Notes |
|
|
| CUSIP / ISIN: |
|
670346AM7 / US670346AM72 for the 2023 Notes |
|
|
|
|
|
670346AN5 / US670346AN55 for the 2043 Notes |
|
|
| Joint Book-Running Managers: |
|
Citigroup Global Markets Inc. |
|
|
J.P. Morgan Securities LLC |
|
|
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
|
|
Deutsche Bank Securities Inc. |
|
|
Wells Fargo Securities, LLC |
|
|
| Co-Managers: |
|
PNC Capital Markets LLC |
|
|
The Williams Capital Group, L.P. |
|
|
U.S. Bancorp Investments, Inc. |
|
|
Fifth Third Securities, Inc. |
|
|
Lloyds Securities Inc. |
|
|
RBC Capital Markets, LLC |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling Citigroup Global
Markets Inc. toll-free at 1-800-831-9146 or J.P. Morgan Securities LLC collect at 212-834-4533 or Merrill Lynch, Pierce, Fenner & Smith Incorporated toll-free at 1-800-294-1322.
SCHEDULE C
Issuer Free Writing Prospectuses
Final Term Sheet attached at Schedule B.
