UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 20, 2017
Teleflex Incorporated
(Exact Name of Registrant as Specified in Charter)
Delaware | 1-5353 | 23-1147939 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) | ||
550 East Swedesford Road, Suite 400 Wayne, PA |
19087 | |||
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (610) 225-6800
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 | Entry into a Material Definitive Agreement |
Underwriting Agreement
On November 16, 2017, Teleflex Incorporated (the Company) entered into an underwriting agreement (the Underwriting Agreement) with the subsidiaries of the Company named as guarantors therein (the Guarantors), J.P. Morgan Securities LLC, on behalf of the several underwriters named therein (the Underwriters) and Guggenheim Securities, LLC as underwriter and independent underwriter, pursuant to which the Company agreed to sell $500.0 million aggregate principal amount of 4.625% Senior Notes due 2027 (the Notes). The Notes were offered and sold in a public offering registered under the Securities Act of 1933, as amended (the Offering), pursuant to a Registration Statement on Form S-3 (Registration No. 333-211276) as amended by Post-Effective Amendment No.1 thereto. On November 20, 2017, the Company issued and sold to the Underwriters $500.0 million aggregate principal amount of the Notes upon payment pursuant to the Underwriting Agreement.
The Underwriting Agreement includes customary representations, warranties and covenants. Under the terms of the Underwriting Agreement, the Company and the Guarantors have agreed to indemnify the Underwriters against certain liabilities and contribute to payments which the Underwriters may be required to make in respect of any such liabilities.
The Company estimates that the net proceeds from the offering of the Notes will be approximately $491.2 million, after deducting the Underwriters discounts and commissions and estimated net offering expenses payable by the Company. The Company intends to use the net proceeds to repay approximately $491.2 million of borrowings under the Companys revolving credit facility.
The foregoing description of the Underwriting Agreement is qualified in its entirety by the copy thereof which is attached as Exhibit 1.1 and incorporated herein by reference.
Indenture and Notes
Overview
On November 20, 2017, the Company issued the Notes pursuant to an indenture, dated as of May 16, 2016 (the Base Indenture), between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by the Fourth Supplemental Indenture, dated as of November 20, 2017 (together with the Base Indenture, the Indenture), among the Company, the Guarantors and the Trustee.
The Notes pay interest semi-annually on May 15 and November 15, commencing on May 15, 2018, at a rate of 4.625% per year, and mature on November 15, 2027.
Ranking
The Notes and the guarantees thereof are the Companys and the Guarantors general unsecured senior obligations and rank pari passu in right of payment with all of the Companys and the Guarantors existing and future senior obligations, including the Companys 5.250% senior notes due 2024 and the Companys 4.875% senior notes due 2026, and senior in right of payment to any of the Companys and the Guarantors future subordinated indebtedness. The Notes and the guarantees thereof are effectively subordinated to the Companys and the Guarantors existing and future secured indebtedness, including all outstanding term loans and revolver borrowings under the Companys credit agreement, to the extent of the value of the assets securing such indebtedness. The Notes and the guarantees are structurally subordinated to all existing and future indebtedness and other claims and liabilities, including preferred stock, of the Companys subsidiaries that do not guarantee the Notes.
Guarantees
The obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by each of the Companys existing and future wholly-owned domestic subsidiaries that is a guarantor or other obligor under the Companys credit agreement and by certain of the Companys other wholly-owned subsidiaries.
Optional Redemption
At any time prior to November 15, 2022 the Company may on any one or more occasions redeem all or a part of the Notes at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the greater of (1) 1.0% of the principal amount of the Notes and (2) the excess, if any, of (a) the present value at such redemption date of (i) the redemption price of such note at November 15, 2022 (as set forth in the table appearing below), plus (ii) all required interest payments due on the Notes through November 15, 2022 (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the treasury rate as of such redemption date plus 50 basis points; over (b) the then outstanding principal amount of the Notes (as of, and plus accrued and unpaid interest and additional interest, if any, to, the date of redemption), subject to the rights of holders of the notes on the relevant record date to receive interest due on the relevant interest payment date.
On or after November 15, 2022, the Company may on any one or more occasions redeem all or a part of the Notes at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest and additional interest (as described below), if any, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on November 15 of the years indicated below, subject to the rights of holders of the notes on the relevant record date to receive interest due on the relevant interest payment date:
Year |
Percentage | |||
2022 |
102.313 | % | ||
2023 |
101.542 | % | ||
2024 |
100.771 | % | ||
2025 and thereafter |
100.000 | % |
In addition, at any time prior to November 15, 2020, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under the Indenture (including any additional notes) at a redemption price equal to 104.625% of the principal amount of the Notes redeemed, plus accrued and unpaid interest thereon and additional interest, if any, to the applicable redemption date, subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date, with the net cash proceeds of one or more equity offerings; provided, that, at least 60% of the aggregate principal amount of Notes originally issued under the indenture (excluding notes held by the Company and its subsidiaries) remains outstanding immediately after the occurrence of such redemption; provided further that each such redemption occurs within 120 days of the date of closing of each such equity offering.
Change of Control
If the Company experiences certain change of control events coupled with a downgrade in the ratings of the Notes, the Company must offer to repurchase the Notes at a repurchase price equal to 101% of the principal amount of the Notes repurchased, plus accrued and unpaid interest and additional interest, if any, to, but not including, the applicable repurchase date.
Covenants
The Indenture contains covenants that, among other things, limit the Companys ability and the ability of its subsidiaries to:
| create certain liens; |
| enter into sale leaseback transactions; and |
| merge, consolidate, sell or otherwise dispose of all or substantially all of the Companys assets. |
Events of Default
The Indenture also provides for events of default which, if any of them occurs, would permit or require the principal of and accrued interest on the Notes to become or to be declared due and payable.
* * *
The foregoing description of the Indenture, the Notes and the guarantees are qualified in its entirety by reference to the actual terms of the Indenture and the Notes, copies of which are attached as Exhibits 4.1, 4.2 and 4.3 hereto and are incorporated by reference herein.
In connection with this offering, the legal opinions as to the legality of the Notes and guarantees thereof are being filed as Exhibits 5.1, 5.2, 5.3, 5.4 and 5.5 of this report.
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off Balance Sheet Arrangement of a Registrant |
The information set forth in Item 1.01 is incorporated by reference into this Item 2.03.
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits.
EXHIBIT INDEX
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: November 20, 2017
TELEFLEX INCORPORATED | ||
By: | /s/ Jake Elguicze | |
Name: | Jake Elguicze | |
Title: | Treasurer and Vice President, Investor Relations |
Exhibit 1.1
Teleflex Incorporated
$500,000,000 4.625% Senior Notes Due 2027
Underwriting Agreement
November 16, 2017
J.P. MORGAN SECURITIES LLC
As Representative of the several Underwriters
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Introductory. Teleflex Incorporated, a Delaware corporation (the Company), proposes to issue and sell to J.P. Morgan Securities LLC (J.P. Morgan) and the other several Underwriters named in Schedule A hereto (such Underwriters, the Underwriters), acting severally and not jointly, the respective amounts set forth in such Schedule A of $500,000,000 aggregate principal amount of its 4.625% Senior Notes due 2027 (the Notes). J.P. Morgan has agreed to act as the representative of the several Underwriters (the Representative) in connection with the offering and sale of the Notes.
The Securities (as defined below) will be issued pursuant to an indenture, dated as of May 16, 2016 (the Base Indenture) between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by the Fourth Supplemental Indenture to be dated as of November 20, 2017, among the Company, the Guarantors (as defined below) and the Trustee (the Supplemental Indenture and, together with the Base Indenture, the Indenture). The Notes will be issued only in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the Depositary) pursuant to a letter of representations, to be dated on or before the Closing Date (as defined in Section 2 hereof) (the DTC Agreement), among the Company and the Depositary.
The Company and the Guarantors, in accordance with the requirements of Conduct Rule 5121 (Rule 5121) of the Financial Industry Regulatory Authority, Inc. (FINRA) and subject to the terms and conditions stated herein, also hereby confirm the engagement of the services of Guggenheim Securities, LLC (the Independent Underwriter), as a qualified independent underwriter within the meaning of Section (f)(12) of Rule 5121 in connection with the offering and sale of the Securities, and the Independent Underwriter hereby confirms its engagement to render such services.
The payment of principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a senior unsecured basis, jointly and severally by (i) the entities listed on the signature pages hereof as Guarantors (collectively, the Guarantors) and (ii) any subsidiary of the Company formed or acquired after the Closing Date that executes an additional guarantee in accordance with the terms of the Indenture, and their respective successors and assigns, pursuant to their guarantees (the Guarantees). The Notes and the Guarantees thereof are herein collectively referred to as the Securities.
This Agreement, the Securities and the Indenture are collectively referred to herein as the Transaction Documents.
The Company has prepared and filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act), a registration statement on Form S-3 (File No. 333-211276), as amended by post-effective amendment no. 1 thereto, including a prospectus, relating to the Securities. Such registration statement, as amended at the time post-effective amendment no. 1 became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (Rule 430 Information), is referred to herein as the Registration Statement; and as used herein, the term Preliminary Prospectus means each prospectus included in such registration statement (and any amendments thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term Prospectus means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the Rule 462 Registration Statement), then any reference herein to the term Registration Statement shall be deemed to include such Rule 462 Registration Statement. Any reference in this agreement (this Agreement) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 2:45 p.m. New York City time on November 16, 2017, the time when sales of the Securities were first made (the Time of Sale), the Company had prepared the following information (collectively, the Pricing Disclosure Package): a Preliminary Prospectus dated November 16, 2017, and each free-writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex I hereto.
The Company hereby confirms its agreements with the Underwriters as follows:
SECTION 1. Representations and Warranties. Each of the Company and the Guarantors, jointly and severally, hereby represent, warrant and covenant to each Underwriter that, as of the date hereof and as of the Closing Date:
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(a) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the requirements of the Securities Act and did not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished to the Company in writing by an Underwriter through J.P. Morgan expressly for use therein.
(b) The Pricing Disclosure Package, as of the Time of Sale, did not, and at the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to statements in or omissions from the Pricing Disclosure Package or an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished to the Company in writing by an Underwriter through J.P. Morgan expressly for use therein.
(c) The Company has not prepared, made, used, authorized, approved or distributed and will not prepare, make, use, authorize, approve or distribute any written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Registration Statement, (iii) the Preliminary Prospectus, (iv) the Prospectus, (v) the documents listed on Annex I hereto, including a Pricing Term Sheet substantially in the form of Annex II hereto, which constitute part of the Pricing Disclosure Package and (vi) any electronic road show or other written communications, in each case used in accordance with Section 3(a). Each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i), (ii), (iii) and (iv) above) an Issuer Free Writing Prospectus. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Pricing Disclosure Package, did not as of the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to statements in or omissions from each such Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through J.P. Morgan expressly for use in any such Issuer Free Writing Prospectus.
(d) The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the
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Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the Companys knowledge, threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the Trust Indenture Act), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) to any statements in or omissions from the Registration Statement and the Prospectus and any amendment or supplement thereto made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through J.P. Morgan expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e) The documents incorporated or deemed to be incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus when they were or hereafter are filed with the Commission (collectively, the Incorporated Documents) complied and will comply in all material respects with the requirements of the Exchange Act. Each such Incorporated Document, when taken together with the Pricing Disclosure Package, did not as of the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any further documents so filed and incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus or any further amendment or supplement thereto, when such documents are filed with the Commission will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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, in the light of the circumstances under which they were made, not misleading.
(f) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or
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governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has not been any change in the capital stock or long term debt of the Company or any of its subsidiaries (other than changes due to (i) issuances of the Companys common stock under the Companys employee benefit plans and the Companys dividend reinvestment plan or (ii) any scheduled repayment of the Companys existing debt or conversion of the Companys existing convertible debt in accordance with the terms thereof) or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders equity or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(g) Each of the Company, each of its significant subsidiaries (as such term is defined in Rule 1-02(w) of Regulation S-X under the Securities Act and each of the Guarantors; each a Subsidiary and together the Subsidiaries) have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by it, in each case free and clear of all liens, encumbrances and defects (other than pledges of shares of certain of the Companys domestic and foreign subsidiaries created pursuant to the Companys existing senior secured credit facilities (the Existing Credit Facilities) except such as are described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material to, and do not materially interfere with the use made and proposed to be made of such property and buildings by, the Company and its Subsidiaries.
(h) Each of the Company and the Guarantors has been duly incorporated or otherwise formed and is validly existing as a corporation, limited liability company, partnership or other legal entity in good standing (to the extent such concept exists under the laws of the relevant jurisdiction) under the laws of its jurisdiction of incorporation or formation and each of them has the power and authority (corporate and other) to own, lease and operate its properties and to conduct its business as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. Each of the Company and the Guarantors has been duly qualified as a foreign corporation for the transaction of business and is in good standing (to the extent such concept exists under the laws of the relevant jurisdiction) under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification (where such qualification is required), or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction, except as would not be reasonably expected to have a material adverse effect on the business, condition (financial or otherwise), results of operations, properties or prospects of the Company and its
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subsidiaries, taken as a whole (a Material Adverse Effect); and each Subsidiary of the Company is listed on Schedule B hereto, has been duly incorporated or organized and is validly existing as a corporation or limited liability company, as the case may be, in good standing (to the extent such concept exists under the laws of the relevant jurisdiction) under the laws of its jurisdiction of incorporation or formation, as the case may be; and each of the subsidiaries of the Company, other than the Subsidiaries, has been duly incorporated or organized and is validly existing as a corporation or limited liability company, as the case may be, in good standing (to the extent such concept exists under the laws of the relevant jurisdiction) under the laws of its jurisdiction of incorporation or formation, as the case may be, except where the failure to be in good standing (to the extent such concept exists under the laws of the relevant jurisdiction) would not have a Material Adverse Effect.
(i) The Company and the Guarantors have all requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Documents to which they are a party, and to perform their obligations hereunder and thereunder and to consummate the transactions herein and therein contemplated. This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors.
(j) The Company has an authorized capitalization as set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading Capitalization and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except for directors qualifying shares and except as otherwise set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims (other than pledges of shares of certain of the Companys domestic and foreign subsidiaries created pursuant to the Existing Credit Facilities).
(k) The Notes have been duly authorized and, when issued and delivered by the Company pursuant to this Agreement and authenticated in the manner provided in the Indenture and delivered against payment of the purchase price therefor, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable against the Company and entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization, examinership and other laws of general applicability relating to or affecting creditors rights and to general equity principles (the Bankruptcy Exceptions); the Guarantees have been duly authorized and, when the Notes have been issued and delivered by the Company pursuant to this Agreement and authenticated in the manner provided in the Indenture and delivered against payment of the purchase price therefor, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Guarantors, enforceable against each of the Guarantors and entitled to the benefits provided by the Indenture, subject, as to enforcement, to the Bankruptcy Exceptions; the Base Indenture has been duly authorized, executed and
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delivered by the Company, and assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument, enforceable against the Company in accordance with its terms, subject, as to enforcement, to the Bankruptcy Exceptions; the Supplemental Indenture has been duly authorized by the Company and each of the Guarantors and, when executed and delivered by the Company, the Guarantors and the Trustee, will constitute a valid and legally binding instrument, enforceable against the Company and the Guarantors in accordance with its terms, subject, as to enforcement, to the Bankruptcy Exceptions; the Securities and the Indenture will conform in all material respects to the descriptions thereof in the Pricing Disclosure Package and the Prospectus; and the Indenture will be duly qualified under the Trust Indenture Act and will conform in all material respects to the requirements of the Trust Indenture Act and the regulations of the Commission applicable to an indenture that is qualified thereunder.
(l) The issue and sale of the Securities and the compliance by the Company and the Guarantors with all of the provisions of the Transaction Documents to which each is a party and the consummation of the transactions herein and therein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries or any of the Guarantors is a party or by which the Company or any of its Subsidiaries or any of the Guarantors is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, except where such breach or violation would not, individually or in the aggregate, result in a Material Adverse Effect or have a material adverse effect on the ability of the Company and its subsidiaries to perform their obligations in accordance with the terms of the Transaction Documents, (ii) result in any violation of the provisions of the Certificate of Incorporation or By-laws or similar organizational or constitutional documents of the Company or any of its Subsidiaries or any of the Guarantors, or (iii) result in any violations of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of the Guarantors or any of their properties, except where such violation would not, individually or in the aggregate, result in a Material Adverse Effect or have a material adverse effect on the ability of the Company and its subsidiaries to perform their obligations in accordance with the terms of the Transaction Documents; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company or any of the Guarantors of the transactions contemplated by the Transaction Documents, except for the registration of the Securities and the Guarantees under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(m) None of the Company, any of its Subsidiaries nor any of the Guarantors is (i) in violation of its Certificate of Incorporation or By-laws or similar organizational or constitutional document or (ii) in default in the performance or observance of any obligation,
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covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except, in the case of clause (ii), for any such default or violation that would not, individually or in the aggregate, result in a Material Adverse Effect.
(n) The statements set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus under the caption Description of notes, insofar as they purport to constitute a summary of the terms of the Securities and under the caption Certain United States federal income and estate tax consequences to non-United States holders and under the caption Underwriting (conflicts of interest), insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate summaries in all material respects.
(o) Other than as set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries or any of the Guarantors is a party or of which any property of the Company or any of its subsidiaries or any of the Guarantors is the subject which, if determined adversely to the Company or any of its subsidiaries or any of the Guarantors, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect or have a material adverse effect on the ability of the Company and the Guarantors to perform their obligations in accordance with the terms of the Transaction Documents; and, other than as set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, to the Companys or any Guarantors knowledge, no such proceedings are threatened by governmental authorities or others.
(p) Neither the Company nor any Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an investment company, as such term is defined in the Investment Company Act of 1940, as amended.
(q) The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
(r) PricewaterhouseCoopers LLP, who has audited certain financial statements of the Company and its subsidiaries, and has audited the Companys internal control over financial reporting and managements assessment thereof are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder.
(s) Baker Tilly Virchow Krause, LLP, who has audited certain financial statements of Vascular Solutions LLC (Vascular) and its subsidiaries, and has audited Vasculars internal control over financial reporting and managements assessment thereof are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder.
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(t) PricewaterhouseCoopers LLP, who has audited certain financial statements of NeoTract, Inc. (NeoTract) and its subsidiaries, are independent public accountants as required by the Securities Act and the rules and regulations of the Commission thereunder.
(u) The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Companys principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Companys internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting.
(v) Since the date of the latest audited financial statements included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, there has been no change in the Companys internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting.
(w) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Companys principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.
(x) The financial statements of the Company, including the notes thereto, and any supporting schedules included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the changes in their cash flows and results of their operations for the periods specified by the Company and its consolidated subsidiaries; such financial statements have been prepared in all material respects in conformity with United States generally accepted accounting principles applied on a consistent basis throughout the periods involved; and any supporting schedules included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus present fairly, in all material respects, the information required to be stated therein. Except as set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, the financial data set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus under the caption SummarySummary financial data and the other financial information included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly present the information set forth therein on a basis consistent with that of the respective audited and unaudited financial statements incorporated by reference in
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each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. The pro forma financial information and the related notes thereto included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus have been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto.
(y) To the Companys knowledge, the financial statements of Vascular and NeoTract, respectively, including the notes thereto, and any supporting schedules included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of Vascular and its consolidated subsidiaries and NeoTract and its consolidated subsidiaries, respectively, as of the dates indicated and the changes in their cash flows and results of their operations for the periods specified by Vascular and its consolidated subsidiaries and NeoTract and its consolidated subsidiaries, respectively; such financial statements have been prepared in all material respects in conformity with United States generally accepted accounting principles applied on a consistent basis throughout the periods involved.
(z) Except as would not, individually or in the aggregate, result in a Material Adverse Effect or except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus: (i) neither the Company nor any of its subsidiaries is, to the Companys or any Guarantors knowledge, or has been, in violation of any U.S. federal, state, local or foreign law (including common law), regulation, rule, requirement, decision or order relating to pollution or protection of worker health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), natural resources, or wildlife, including, without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum and petroleum products (collectively, Materials of Environmental Concern), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of, or exposure to, Materials of Environmental Concern (collectively, Environmental Laws), which violation includes, without limitation, noncompliance with any permits or other governmental authorizations required for the operation of the business of the Company or its subsidiaries under applicable Environmental Laws, nor has the Company or any of its subsidiaries received any written communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Company or any of its subsidiaries is in violation of any Environmental Law, (ii) there is no claim or action with respect to which the Company or any of its subsidiaries has received written notice, and no written notice by any person or entity
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alleging potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, attorneys fees or penalties arising out of, based on or resulting from the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by the Company or any of its subsidiaries, now or in the past (collectively, Environmental Claims) pending or, to the knowledge of the Company and the Guarantors, threatened in writing against the Company or any of its subsidiaries or any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law and (iii) to the knowledge of the Company and the Guarantors, there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern, that would be reasonably expected to result in a violation of any Environmental Law or form the basis of a potential Environmental Claim against the Company or any of its subsidiaries or any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law.
(aa) The Company and each of its Subsidiaries and each of the Guarantors own, are licensed to use, or possess all intellectual property and proprietary rights, including, without limitation, trademarks, trademark licenses, service marks, trade names, patents, patent licenses, copyrights, copyright licenses, works of authorship, all applications and registrations for the foregoing, approvals, trade secrets, domain names, technology, know-how and processes and all other similar rights (collectively, the Intellectual Property Rights) necessary to conduct their respective businesses, free and clear of liens (other than liens on Intellectual Property Rights of certain of the Companys subsidiaries created pursuant to the Companys Existing Credit Facilities). To the best knowledge of the Company and the Guarantors, (i) no third party is violating or infringing the Intellectual Property Rights of the Company or any of its Subsidiaries or any of the Guarantors and (ii) the conduct of the business of the Company and its Subsidiaries and the Guarantors does not violate or infringe the Intellectual Property Rights of others, except as would not reasonably be expected to result in a Material Adverse Effect.
(bb) Except as would not result, individually or in the aggregate, in a Material Adverse Effect or except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company, nor the Companys business operations, is in violation of any Health Care Laws. For purposes of this Agreement, Health Care Laws means (i) all federal and state fraud and abuse laws, including, but not limited to, the federal Anti-Kickback Statute (42 U.S.C. §1320a-7(b)), the civil False Claims Act (31 U.S.C. §3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), the exclusion laws (42 U.S.C. § 1320a-7), the civil monetary penalty laws (42 U.S.C. § 1320a-7a), the Physician Payment Sunshine Act (42 U.S.C. § 1320a-7h) and the regulations promulgated pursuant to such statutes, (ii) the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191) and the Health Information Technology for Economic and Clinical Health Act of 2009, and the regulations promulgated thereunder and comparable state privacy and security laws, (iii) Medicare (Title XVIII of
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the Social Security Act) and the regulations promulgated thereunder, (iv) Medicaid (Title XIX of the Social Security Act) and the regulations promulgated thereunder, (v) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) and the regulations promulgated pursuant thereto, (vi) quality, safety and accreditation standards and requirements of all applicable state laws or regulatory bodies and (vii) any and all other applicable health care laws, regulations, manual provisions, policies and administrative guidance, each of (i) through (vii) as may be amended from time to time. Except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority alleging that any product, operation or activity is in violation of any applicable Health Care Law or permit and has no knowledge that any such governmental authority is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; and the Company has not received notice, either verbally or in writing, that any governmental authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any permits and has no knowledge that any such governmental authority is considering such action, except for any of the foregoing that would not reasonably be expected to result in a Material Adverse Effect.
(cc) The Company and each of its Subsidiaries and each of the Guarantors possess such permits, licenses, franchises, certificates, orders and other approvals or authorizations issued by governmental or regulatory authorities (Permits) as are necessary under applicable law to conduct their businesses in the manner described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, except for any of the foregoing that would not, individually or in the aggregate, result in a Material Adverse Effect or except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus. The Company and its Subsidiaries and each of the Guarantors have each fulfilled and performed all of their respective obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or result in any other impairment of the rights of the holder of any such Permits, except for any of the foregoing that would not, individually or in the aggregate, result in a Material Adverse Effect. None of the Company, any of its Subsidiaries nor any of the Guarantors has received notice of any revocation or modification of any such Permits or has any reason to believe that any such Permits will not be renewed in the ordinary course, except that would not, individually or in the aggregate, result in a Material Adverse Effect.
(dd) The Company holds, and is operating in material compliance with, such registrations, licenses, approvals, authorizations and clearances of the United States Food and Drug Administration (FDA) required for the conduct of its business as currently conducted (collectively, the FDA Authorizations), except where the failure to hold or operate in material compliance with the FDA Authorizations would not result in a Material Adverse Effect, and all such FDA Authorizations are in full force and effect. The Company has fulfilled and performed all of its material obligations with respect to the FDA Authorizations, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment
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of the rights of the holder of any FDA Authorization, except where the failure to so fulfill or perform, or the occurrence of such event, would not result in a Material Adverse Effect. Except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has operated and currently is in compliance in all material respects with applicable statutes and implementing regulations administered or enforced by the FDA, except where the failure to so comply would not result in a Material Adverse Effect. Except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus or as would not reasonably be expected to result in a Material Adverse Effect, the Company has not received notice of any pending or threatened claim, suit, proceeding, hearing, enforcement, audit, investigation, arbitration or other action from the FDA or applicable foreign regulatory agency alleging that any operation or activity of the Company is in violation of any applicable law, rule or regulation.
(ee) Except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, since January 1, 2012, the Company has not had any product or manufacturing site (whether Company-owned or that of a contract manufacturer for the Companys products) subject to a governmental authority (including FDA) shutdown or import or export prohibition, nor received any FDA Form 483 or other governmental authority notice of inspectional observations, Warning Letters, untitled letters or requests or requirements to make changes to the Companys products that if not complied with would reasonably be expected to result in a Material Adverse Effect on the Company, or similar correspondence or notice from the FDA or other governmental authority in respect of the Company business and alleging or asserting noncompliance with any applicable law, Permit or such requests or requirements of a governmental authority, and, to the knowledge of the Company, neither the FDA nor any governmental authority is considering such action.
(ff) Except as would not result in a Material Adverse Effect, there are no recalls, field notifications, field corrections, market withdrawals or replacements, safety alerts or other notice of action relating to an alleged lack of safety, efficacy or regulatory compliance of the Companys products, or, to the Companys knowledge, material product complaints with respect to the Companys products, and to the Companys knowledge, there are no notices or pending or threatened action by FDA that would be reasonably likely to result in (i) a material recall, field notification, field correction, market withdrawal or replacement, safety alert or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of the Companys products with respect to the Companys products, (ii) a material change in labeling of any the Companys products, or (iii) a termination or suspension of marketing or testing of any the Companys products.
(gg) The Company and each of its Subsidiaries and each of the Guarantors have filed all necessary U.S. federal, state and foreign income and franchise tax returns or have properly requested extensions thereof, and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them except as may be being contested in good faith and by
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appropriate proceedings or have been accrued for on the consolidated financial statements of the Company, except where the failure to file such tax returns or pay such taxes, assessments, fines and penalties would not, individually or in the aggregate, result in a Material Adverse Effect. The Company has made adequate charges, accruals and reserves in its consolidated financial statements contained in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus in respect of all U.S. federal, state and foreign income and franchise taxes for all periods as to which the tax liabilities of the Company or any of its subsidiaries has not been finally determined, except to the extent that the failure to do so would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(hh) No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Companys or any Guarantors knowledge, is imminent that would result in a Material Adverse Effect.
(ii) The Company and each of its Subsidiaries and each of the Guarantors are insured by recognized and, to the Companys and the Guarantors knowledge, financially sound institutions with policies in such amounts and with such deductibles and covering such risks as are generally deemed reasonably adequate for the conduct of their respective businesses, including, without limitation, policies covering real and personal property owned, leased or operated by them against theft, damage, destruction or acts of vandalism, and all such insurance is in full force and effect. None of the Company, any of its Subsidiaries nor any of the Guarantors has any reason to believe that it will not be able to (i) renew its existing insurance coverage as and when such policies expire or (ii) obtain comparable coverage from similar institutions as may be reasonably necessary or appropriate to conduct the business of the Company and its Subsidiaries and the Guarantors as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse Effect.
(jj) No relationship, direct or indirect, that would be required to be described pursuant to Item 404 of Regulation S-K under the Securities Act in an annual report on Form 10-K filed by the Company exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other hand, that has not been described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(kk) Each employee benefit plan (as defined under Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder (collectively, ERISA)) which is subject to Title IV of ERISA (each, a Plan) and is maintained by the Company or any of its subsidiaries, is in compliance in all material respects with ERISA to the extent subject thereto. ERISA Affiliate means, with respect to the Company, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the Code) of which the Company is a member. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect: (a) no reportable event (as defined under Section
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4043(c) of ERISA other than those events for which the 30 day notice period has been waived) has occurred respect to any Plan which is maintained by the Company or any of its ERISA Affiliates, (b) neither the Company nor any of its ERISA Affiliates has incurred any unsatisfied liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any Plan or (ii) Sections 412, or 4972 of the Code and (c) each Plan established or maintained by the Company that is intended to be qualified under Section 401 of the Code has received a determination letter from the Internal Revenue Service stating that it is so qualified, and to the Companys knowledge nothing has occurred, whether by action or failure to act, which would cause the loss of such qualification.
(ll) Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or the Underwriters for a brokerage commission, finders fee or like payment in connection with the offering and sale of the Securities.
(mm) There is and has been no failure on the part of the Company or any of its directors or officers, in their capacities as directors or officers, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
(nn) None of the transactions contemplated by this Agreement will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System.
(oo) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company or any Guarantor, any director, officer, agent, employee or other representative acting on behalf of the Company or any of its subsidiaries, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any government official or employee to influence official action or secure an improper advantage that would constitute a violation of the Foreign Corrupt Practices Act of 1977 (the FCPA) or the Bribery Act 2010 of the United Kingdom (the Bribery Act) and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and the Bribery Act and have instituted and maintain and enforce policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith, except in the case of the immaterial matter discussed with the Underwriters in connection with their due diligence.
(pp) The operations of the Company and its subsidiaries are and have been conducted at all times (i) in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended; (ii) in compliance with (A) the applicable money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business and (B) the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
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the Money Laundering Laws); and (iii) 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 knowledge of the Company and the Guarantors, threatened.
(qq) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company or any Guarantor, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries: (i) is currently subject to any sanctions administered and/or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC), the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union or Her Majestys Treasury (collectively, Sanctions) or (ii) appears on the Specially Designated Nationals and Blocked Persons list maintained by OFAC or the Annex to Executive Order 13224 issued by the President of the United States, each as amended from time to time, nor is the Company or any of its subsidiaries organized or resident in a country or territory that is the subject of Sanctions. The Company will not directly or indirectly use the proceeds of the offering contemplated hereby, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person currently subject to any Sanctions nor provide such proceeds to any destination, entity or person prohibited from receiving them by the laws or regulations of the United States or will otherwise fail to comply with those United States laws and regulations, or in any other manner that will result in a violation by any person (including any person participating in the offering, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(rr) The Company is subject to and in compliance with the reporting requirements of Section 13 or 15(d) of the Exchange Act.
(ss) Prior to the date hereof, neither the Company nor any of its affiliates has taken any action which is designed to or which has constituted or which might reasonably have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities.
(tt) Each of the Company and the Guarantors is, and immediately after the Closing Date will be, Solvent. As used herein, the term Solvent means, with respect to any person on a particular date, that on such date (i) the fair market value of the assets of such person is greater than the total amount of liabilities (including contingent liabilities) of such person, (ii) the present fair salable value of the assets of such person is greater than the amount that will be required to pay the probable liabilities of such person on its debts as they become absolute and matured, (iii) such person is able to realize upon its assets and pay its debts and other liabilities, including contingent obligations, as they mature and (iv) such person is not engaged in any business or transaction, and does not propose to engage in any business transaction for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such person is engaged.
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(uu) No person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
Any certificate signed by an officer of the Company or any Guarantor and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company or such Guarantor to each Underwriter as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. Each of the Company and the Guarantors agrees to issue and sell to the Underwriters, severally and not jointly, all of the Securities, and subject to the conditions set forth herein, the Underwriters agree, severally and not jointly, to purchase from the Company and the Guarantors the aggregate principal amount of Securities set forth opposite their names on Schedule A, at a purchase price of 98.740% of the principal amount thereof payable on the Closing Date, in each case, on the basis of the representations, warranties and agreements herein contained, and upon the terms herein set forth.
(b) Public Offering. The Company understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of J.P. Morgan is advisable, and initially to offer the Securities on the terms set forth in the Pricing Disclosure Package. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) The Closing Date. Delivery of certificates for the Securities in definitive form to be purchased by the Underwriters and payment therefor shall be made at the offices of Latham & Watkins LLP (or such other place as may be agreed to by the Company and J.P. Morgan) at 10:00 a.m. New York City time, on November 20, 2017, or such other time and date as J.P. Morgan and the Company may agree to in writing (the time and date of such closing are called the Closing Date).
(d) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to J.P. Morgan for the accounts of the several Underwriters certificates for the Securities at the Closing Date against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. The certificates for the Securities shall be in such denominations and registered in the name of Cede & Co., as nominee of the Depositary, pursuant to the DTC Agreement, and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as J.P. Morgan may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to the obligations of the Underwriters.
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SECTION 3. Additional Covenants. Each of the Company and the Guarantors further covenants and agrees with each Underwriter as follows:
(a) Required Filings. The Company and the Guarantors will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex II hereto) to the extent required by Rule 433 under the Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the second business day succeeding the date of this Agreement in such quantities as the Representative may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective the Company will furnish to the Representative and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representative reasonably objects.
(c) Copies of the Prospectus. If requested, the Company will deliver, without charge, to the Underwriters copies of the Registration Statement including all exhibits and consents filed therewith and documents incorporated by reference therein. In addition, during the Prospectus Delivery Period (as defined below), the Company will deliver to each Underwriter as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as the Representative may reasonably request. As used herein, the term Prospectus Delivery Period means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(d) Notice to the Representative. The Company will advise J.P. Morgan promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has
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been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any Pricing Disclosure Package, Issuer Free Writing Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, any of the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing Disclosure Package, Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Pricing Disclosure Package. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Pricing Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Pricing Disclosure Package to comply with applicable law, the Company and the Guarantors will promptly notify the Underwriters thereof and forthwith prepare and (subject to Section 3(c) hereof, file with the Commission (to the extent required) and furnish to the Underwriters, such amendments or supplements to any of the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Pricing Disclosure Package will comply with all applicable law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which it is necessary to amend or supplement the Prospectus as then amended or supplemented, in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a
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subsequent purchaser, not misleading or (ii) if in the reasonable judgment of the Representative or counsel for the Underwriters it is necessary to amend or supplement the Prospectus to comply with law, the Company and the Guarantors agree to promptly prepare (subject to Section 3 hereof), file with the Commission and furnish at its own expense to the Underwriters, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances at the Closing Date and at the Time of Sale of Securities, be misleading or so that the Prospectus, as amended or supplemented will comply with all applicable law.
(g) Blue Sky Compliance. Each of the Company and the Guarantors shall cooperate with the Representative and counsel for the Underwriters to qualify or register (or to obtain exemptions from qualifying or registering) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or any other jurisdictions as you may reasonably request, shall comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be reasonably necessary to complete the distribution of the Securities. None of the Company or any of the Guarantors shall be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation. The Company will advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, each of the Company and the Guarantors shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(h) Earning Statement. The Company will make generally available to its security holders and the Representative as soon as practicable (which may be satisfied by filing with the Commissions Electronic Data Gathering, Analysis and Retrieval (EDGAR) system) an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the effective date (as defined in Rule 158) of the Registration Statement.
(i) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described under the caption Use of proceeds in the Pricing Disclosure Package.
(j) DTC. The Company will cooperate with the Underwriters and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of the DTC.
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(k) Agreement Not To Offer or Sell Additional Securities. During the period of 45 days following the date hereof, the Company will not, without the prior written consent of J.P. Morgan (which consent may be withheld at the sole discretion of J.P. Morgan), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company or securities exchangeable for or convertible into debt securities of the Company (other than as contemplated by this Agreement).
(l) No Stabilization. Neither the Company nor any of the Guarantors will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
The Representative on behalf of the several Underwriters, may, in its sole discretion, waive in writing the performance by the Company or any Guarantor of any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. Each of the Company and the Guarantors, jointly and severally, covenants and agrees with the several Underwriters that the Company and the Guarantors will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys and the Guarantors counsel and accountants in connection with the preparation, printing and reproduction of the Transaction Documents, the Registration Statement, the Pricing Disclosure Package and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement Among Underwriters (including any agreement with the Independent Underwriter), the Transaction Documents, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 3(g) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA, including the reasonable fees and disbursements of counsel for the Underwriters in connection with the review by FINRA, if any, of the terms of the sale of the Securities in an amount not to exceed $10,000; and (viii) all other reasonable costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section 4, and Sections 6 and 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
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SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made and to the timely performance by the Company and the Guarantors of their respective covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 3(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representative.
(b) Accountants Comfort Letters. On the date hereof, the Underwriters shall have received from each of (i) PricewaterhouseCoopers LLP, the independent registered public accounting firm for the Company, (ii) Baker Tilly Virchow Krause, LLP, the independent registered public accounting firm for Vascular, and (iii) PricewaterhouseCoopers LLP, the independent registered public accounting firm for NeoTract, a comfort letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representative, covering the financial information in the Pricing Disclosure Package and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from each of such accountants a bring-down comfort letter dated the Closing Date addressed to the Underwriters, in form and substance satisfactory to the Representative, in the form of the comfort letter delivered on the date hereof, except that (i) each such bring-down comfort letter shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date.
(c) No Material Adverse Change. (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto) and (ii) since the respective dates as of which information is given in the Pricing Disclosure Package there shall not have been any change in the capital stock or long term debt of the Company or any of its subsidiaries (other than changes due to (x) issuances of the Companys common stock under the Companys employee benefit plans and the Companys dividend reinvestment plan or (y) any scheduled repayment of the Companys existing debt or conversion of the Companys existing convertible debt in
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accordance with the terms thereof) or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is in the judgment of J.P. Morgan so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(d) No Rating Agency Change. On or after the Time of Sale (i) no downgrading shall have occurred in the rating accorded the Companys debt securities by any nationally recognized statistical rating organization, as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companys debt securities.
(e) No Market Change. On or after the Time of Sale there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, Inc. (NYSE); (ii) a suspension or material limitation in trading in the Companys or any Guarantors securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York, State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of J.P. Morgan makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus.
(f) Opinion of Underwriters Counsel. Latham & Watkins LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(g) Opinion of Company Counsel. Simpson Thacher & Bartlett LLP, counsel for the Company, shall have furnished to you their written opinion and negative assurance statement substantially in the form attached as Annex III(a) hereto, dated the Closing Date.
(h) Opinion of Company General Counsel. James J. Leyden, as general counsel to the Company, shall have furnished to you his written opinion substantially in the form attached as Annex III(b) hereto, dated the Closing Date.
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(i) Opinion of Company Regulatory General Counsel. Hyman, Phelps & McNamara PC, as special healthcare regulatory counsel to the Company, shall have furnished to you their written opinion substantially in the form attached as Annex III(c) hereto, dated the Closing Date.
(j) Opinion of Company Irish Counsel. A&L Goodbody, special local counsel to Teleflex Urology Limited, shall have furnished to you their written opinion substantially in the form attached as Annex III(d) hereto, dated the Closing Date.
(k) Opinion of Company Minnesota Counsel. Dorsey & Whitney LLP, special local counsel to Vascular Solutions LLC, shall have furnished to you their written opinion substantially in the form attached as Annex III(e) hereto, dated the Closing Date.
(l) Opinion of Company Utah Counsel. Ballard Spahr LLP, special local counsel to Wolfe-Tory Medical, Inc., shall have furnished to you their written opinion substantially in the form attached as Annex III(f) hereto, dated the Closing Date.
(m) Officers Certificate. The Company shall have furnished or caused to be furnished to the Underwriters on the Closing Date certificates of officers of the Company and each Guarantor satisfactory to you as to the accuracy of the representations and warranties of the Company and the Guarantors herein at and as of such time, as to the performance by the Company and the Guarantors of all of their obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (c) and (d) of this Section (as applicable) and as to such other matters as you may reasonably request.
(n) Supplemental Indenture. The Company and the Guarantors shall have executed and delivered the Supplemental Indenture, in form and substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received executed copies thereof.
(o) Additional Documents. On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by J.P. Morgan by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6 and 8 hereof shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters Expenses. If this Agreement is terminated by J.P. Morgan pursuant to Section 5 hereof, including if the sale to the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision
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hereof, other than by reason of a default by any of the Underwriters, including as described in Section 14 hereof, the Company and each of the Guarantors jointly and severally agree to reimburse the Underwriters, severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Underwriters in connection with the proposed purchase and the offering and sale of the Securities, including, without limitation, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex I or prepared pursuant to Section 1(e) or Section 3(b) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex II hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
SECTION 8. Indemnification and Contribution.
(a) Each of the Company and the Guarantors, jointly and severally, will indemnify and hold harmless each Underwriter, its directors, officers, employees, affiliates and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such director, officer, employee, affiliate, agent or controlling person may become subject, under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), Pricing Term Sheet or any Issuer Free Writing Prospectus, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter and each such director, officer, employee, affiliate, agent and
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controlling person for any legal or other expenses reasonably incurred by such Underwriter or such director, officer, employee, affiliate, agent or controlling person in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that none of the Company or any Guarantors shall be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in Registration Statement, Preliminary Prospectus, Pricing Term Sheet, any Issuer Free Writing Prospectus or Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by any Underwriter through J.P. Morgan expressly for use therein.
(b) The Company and the Guarantors, jointly and severally, will indemnify and hold harmless Guggenheim Securities, LLC, in its capacity as Independent Underwriter, against any losses, claims, damages or liabilities, joint or several, to which the Independent Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus or the Prospectus, or any amendment or supplement thereto, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any act or omission to act or any alleged act or omission to act by Guggenheim Securities, LLC as Independent Underwriter in connection with any transaction contemplated by this Agreement or undertaken in preparing for the purchase, sale and delivery of the Securities, except as to this clause (iii) to the extent that any such loss, claim, damage or liability results from the gross negligence or bad faith of Guggenheim Securities, LLC in performing the services as Independent Underwriter, and will reimburse the Independent Underwriter for any legal or other expenses reasonably incurred by the Independent Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company, each Guarantor, each of their respective directors, each of their respective officers who signed the Registration Statement and each person, if any, who controls the Company and each Guarantor within the meaning of the Securities Act or the Exchange Act, against any losses, claims, damages or liabilities to which the Company or any Guarantor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), Pricing Term Sheet or any Issuer Free Writing Prospectus, or caused by any omission or alleged omission to state therein a material fact
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necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, Preliminary Prospectus, Pricing Term Sheet, any Issuer Free Writing Prospectus or Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company or any Guarantor by such Underwriter through J.P. Morgan expressly for use therein; and will reimburse the Company or any Guarantor, or any such director, officer or controlling person for any legal or other expenses reasonably incurred by the Company or any Guarantor, or any such director, officer or controlling person in connection with investigating or defending any such action or claim as such expenses are incurred. The Company and each Guarantor hereby acknowledges that the only information furnished to the Company and each Guarantor by any Underwriter through J.P. Morgan expressly for use in the Registration Statement, Preliminary Prospectus, Pricing Term Sheet, any Issuer Free Writing Prospectus or Prospectus (or any amendment or supplement thereto) are the statements set forth in the fifth paragraph of text (concerning the terms of the offering), the third and fourth sentences in the seventh paragraph of text (concerning market-making activities) and the ninth and tenth paragraphs of text (concerning short sales, stabilizing transactions and purchases to cover positions created by short sales), in each case under the caption Underwriting (conflicts of interest) in the Preliminary Prospectus and the Prospectus.
(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party (except to the extent that such failure to notify results in any material prejudice against the indemnifying party with respect to such action) otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if indemnity is sought by Guggenheim Securities, LLC in its capacity as the Independent Underwriter pursuant to Section 8(b) above, then in addition to such separate counsel of the Underwriters, their affiliates and such control persons of the Underwriters, the indemnifying party shall be liable for fees and expenses of not more than one separate firm (in addition to any local counsel) for Guggenheim Securities, LLC in its capacity as Independent Underwriter, its affiliates, directors, officers and all persons, if any, who
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control Guggenheim Securities, LLC within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act; provided further, that in case any such action shall be brought against any indemnified party and such indemnifying party notifies such indemnified party of its election so to assume the defense thereof, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless: (i) the indemnifying party and the indemnified party shall have mutually agreed to the contrary; (ii) the indemnifying party has failed within a reasonable time to retain counsel satisfactory to the indemnified party; (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them (it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by J.P. Morgan and that all such reasonable fees and expenses shall be reimbursed as they are incurred; provided, however, that if indemnity is sought by Guggenheim Securities, LLC in its capacity as the Independent Underwriter pursuant to Section 8(b) above, then in addition to such separate counsel of the Underwriters, their affiliates and such control persons of the Underwriters, the indemnifying party shall be liable for fees and expenses of not more than one separate firm (in addition to any local counsel) for Guggenheim Securities, LLC in its capacity as Independent Underwriter, its affiliates, directors, officers and all persons, if any, who control Guggenheim Securities, LLC within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act). Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying partys election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action 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.
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(e) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors on the one hand and the Underwriters or the Independent Underwriter, as applicable, on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (d) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantors on the one hand and the Underwriters or the Independent Underwriter, as applicable, on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors on the one hand and the Underwriters or the Independent Underwriter, as applicable, on the other from the offering of the Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the Guarantors bear to the total underwriting discounts and commissions received by the Underwriters or the Independent Underwriter, as applicable, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors on the one hand or the Underwriters or the Independent Underwriter, as applicable, on the other and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantors and the Underwriters and the Independent Underwriter agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities purchased by it and distributed to investors were offered to the investors exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint.
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(f) The obligations of the Company and the Guarantors under this Section 8 shall be in addition to any liability which the Company and the Guarantors may otherwise have and shall extend, upon the same terms and conditions, to each Underwriter, its directors, officers, employees, affiliates and agents and each person, if any, who controls any Underwriter or the Independent Underwriter within the meaning of the Securities Act or the Exchange Act and each broker-dealer affiliate of any Underwriter or the Independent Underwriter; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company or any Guarantor and to each person, if any, who controls the Company or any Guarantor within the meaning of the Securities Act.
SECTION 9. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantors and the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriters, its directors, officers, employees, affiliates and agents and each person, if any, who controls any Underwriter within the meaning of the Securities Act or the Exchange Act, the Company, any Guarantor and each of the Companys and the Guarantors respective directors, officers and each person, if any, who controls the Company and each Guarantor within the meaning of the Securities Act or the Exchange Act, as the case may be, and will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement.
SECTION 10. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:
If to the Underwriters:
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Facsimile: 212.270.1063
Attention: Edward Pyne
with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Facsimile: 212.751.4864
Attention: Marc D. Jaffe
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If to the Independent Underwriter:
Guggenheim Securities, LLC
330 Madison Avenue
New York, New York 10017
Attention: General Counsel
with a copy to:
Latham & Watkins LLP
885 Third Avenue
New York, New York 10022
Facsimile: 212.751.4864
Attention: Marc D. Jaffe
If to the Company or the Guarantors:
Teleflex Incorporated
550 East Swedesford Road,
Wayne, Pennsylvania 19087
Facsimile: 610.225.8780
Attention: Secretary
Any party hereto may change the address or facsimile number for receipt of communications by giving written notice to the others.
SECTION 11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred to in Section 8 hereof, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term successors shall not include any subsequent purchaser or other purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.
SECTION 12. Authority of the Representative. Any action by the Underwriters hereunder may be taken by J.P. Morgan on behalf of the Underwriters, and any such action taken by J.P. Morgan shall be binding upon the Underwriters.
SECTION 13. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 14. Default of One or More of the Several Underwriters. If any one or more of the several Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on the Closing Date, and the aggregate number of Securities which such defaulting Underwriters or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate number of the Securities to be purchased on such date, the other
31
Underwriters shall be obligated, severally, in the proportions that the number of Securities set forth opposite their respective names on Schedule A bears to the aggregate number of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Underwriters with the consent of the non-defaulting Underwriters, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on the Closing Date. If any one or more of the Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs exceeds 10% of the aggregate number of Securities to be purchased on the Closing Date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4 and 8 hereof shall at all times be effective and shall survive such termination. In any such case either the Underwriters or the Company shall have the right to postpone the Closing Date, as the case may be, but in no event for longer than seven days in order that the required changes, if any, to the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any person substituted for a defaulting Underwriter under this Section 14. Any action taken under this Section 14 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
SECTION 15. Independent Underwriter.
(a) The Independent Underwriter hereby represents and warrants to, and agrees with, the Company, each of the Guarantors and the Underwriters that with respect to the offering and sale of the Securities as described in the Prospectus:
(i) The Independent Underwriter constitutes a qualified independent underwriter within the meaning of Section (f)(12) of Rule 5121;
(ii) The Independent Underwriter has participated in the preparation of the Registration Statement and the Prospectus and has exercised the usual standards of due diligence in respect thereto; and
(iii) The Independent Underwriter has undertaken the legal responsibilities and liabilities of an underwriter under the Act specifically including those inherent in Section 11 thereof.
(b) The Independent Underwriter hereby agrees with the Company, each of the Guarantors and the Underwriters that, as part of its services hereunder, in the event of any amendment or supplement to the Prospectus, the Independent Underwriter will render services as a qualified independent underwriter within the meaning of Section (f)(12) of Rule 5121 with respect to the offering and sale of the Securities as described in the Prospectus as so amended or supplemented that are substantially the same as those services being rendered with respect to the offering and sale of the Securities as described in the Prospectus (including those described in (a) above).
32
(c) The Company and each of the Guarantors agrees to cooperate with the Underwriters to enable the Underwriters to comply with Rule 5121 and the Independent Underwriter to perform the services contemplated by this Agreement.
(d) The Company, each of the Guarantors and the Independent Underwriter agree that the Independent Underwriter will provide its services in its capacity as Independent Underwriter hereunder without compensation other than such compensation that the Independent Underwriter may receive as an Underwriter hereunder.
(e) The Independent Underwriter hereby consents to the references to it as set forth under the caption Underwriting (conflicts of interest) in the Prospectus and in any amendment or supplement thereto made in accordance with Section 3 hereof.
SECTION 16. No Advisory or Fiduciary Responsibility. Each of the Company and the Guarantors acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company and the Guarantors, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company and the Guarantors 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 and the Guarantors on other matters) or any other obligation to the Company and the Guarantors except the obligations expressly set forth in this Agreement, (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and the Guarantors and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship, and (v) the Company and the Guarantors have consulted their own legal and financial advisors to the extent they deemed appropriate. The Company and the Guarantors agree that they will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company and the Guarantors, in connection with such transaction or the process leading thereto.
SECTION 17. This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, the Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof.
SECTION 18. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK. The Company agrees that any suit or proceeding arising in respect of this agreement or our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the Company agrees to submit to the jurisdiction of, and to venue in, such courts.
33
SECTION 19. The Company, each of the Guarantors and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 20. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
SECTION 21. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
SECTION 22. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, tax structure is limited to any facts that may be relevant to that treatment.
[Signature Page Follows]
34
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, | ||
Teleflex Incorporated | ||
By: | /s Jake Elguicze | |
Name: Jake Elguicze | ||
Title: Treasurer and Vice President, Investor Relations | ||
Airfoil Technologies International-Ohio, Inc. | ||
Arrow International, Inc. | ||
Arrow International Investment Corp. | ||
Arrow Interventional, Inc. | ||
Hotspur Technologies, Inc. | ||
NeoTract, Inc. | ||
Technology Holding Company II | ||
Technology Holding Company III | ||
Teleflex Medical Incorporated | ||
Teleflex Urology Limited | ||
TFX Medical Wire Products, Inc. | ||
Vascular Solutions LLC | ||
Vasonova, Inc. | ||
Vidacare LLC | ||
Wolfe-Tory Medical, Inc. | ||
By: | /s Jake Elguicze | |
Name: Jake Elguicze | ||
Title: (1) President (in the case of Airfoil Technologies International-Ohio, Inc., Arrow International Investment Corp., Technology Holding Company II and Technology Holding Company III), (2) Vice President & Treasurer (in the case of Arrow International, Inc., Arrow Interventional, Inc., Hotspur Technologies, Inc., NeoTract, Inc., Teleflex Medical Incorporated, TFX Medical Wire Products, Inc., Vascular Solutions LLC, VasoNova, Inc., Vidacare LLC and Wolfe-Tory Medical, Inc.) and (3) Director (in the case of Teleflex Urology Limited) |
35
TFX Equities Incorporated | ||
TFX International Corporation | ||
TFX North America Inc. | ||
By: | /s/ Matthew Howald | |
Name: Matthew Howald | ||
Title: Vice President |
36
The foregoing Agreement is hereby confirmed and accepted by the Underwriters as of the date first above written.
J.P. MORGAN SECURITIES LLC | ||
Acting on behalf of itself and as the Representative of the several Underwriters | ||
By: | J.P. Morgan Securities LLC | |
By: | /s/ Edward S. Pyne | |
Name: Edward S. Pyne | ||
Title: Executive Director | ||
GUGGENHEIM SECURITIES, LLC | ||
As Underwriter and Independent Underwriter | ||
By: | Guggenheim Securities, LLC | |
By: | /s/ Neil Oberoi | |
Name: Neil Oberoi | ||
Title: Senior Managing Director |
SCHEDULE A
Underwriters |
Aggregate Principal Amount of Securities to be Purchased |
|||
J.P. Morgan Securities LLC |
$ | 186,011,000 | ||
Merrill Lynch, Pierce, Fenner &
Smith |
74,404,000 | |||
PNC Capital Markets LLC |
37,202,000 | |||
Citizens Capital Markets, Inc. |
24,802,000 | |||
DNB Markets, Inc. |
24,802,000 | |||
HSBC Securities (USA) Inc. |
24,802,000 | |||
MUFG Securities Americas Inc. |
24,802,000 | |||
SMBC Nikko Securities America, Inc. |
24,802,000 | |||
Wells Fargo Securities, LLC |
24,802,000 | |||
Capital One Securities, Inc. |
12,401,000 | |||
Citigroup Global Markets Inc. |
12,401,000 | |||
Fifth Third Securities, Inc. |
12,401,000 | |||
U.S. Bancorp Investments, Inc. |
12,401,000 | |||
Guggenheim Securities, LLC |
3,967,000 | |||
Total |
$ | 500,000,000 |
SCHEDULE B
Significant Subsidiaries
Arrow International Investment |
Arrow International, Inc. |
LMC Seychelles |
NeoTract, Inc. |
Teleflex Care Ltd. |
Teleflex Funding LLC |
Teleflex Health Ltd. |
Teleflex Holding Netherlands B.V. |
Teleflex Holding Singapore |
Teleflex Innovations S.à r.l. |
Teleflex Life Sciences Unlimited Company |
Teleflex Lux Holding S.à r.l. |
Teleflex Manufacturing Unlimited Company |
Teleflex Medical Asia Pte. Ltd. |
Teleflex Medical B.V. |
Teleflex Medical Devices S.à r.l. |
Teleflex Medical Europe Limited |
Teleflex Medical Technology Ltd |
Teleflex Production Unlimited Company |
Teleflex Urology Limited |
TFX Equities Incorporated |
TFX International Corporation |
TFX North America Inc. |
ANNEX I
Pricing Disclosure Package
Pricing Term Sheet, dated November 16, 2017 substantially in the form of Annex II.
ANNEX II
Filed Pursuant to Rule 433
Registration Statement No. 333-211276
Issuer Free Writing Prospectus dated November 16, 2017
Relating to Preliminary Prospectus Supplement dated November 16, 2017
PRICING TERM SHEET
November 16, 2017
Teleflex Incorporated
$500,000,000
4.625% Senior Notes due 2027
Pricing Term Sheet dated November 16, 2017 to the Preliminary Prospectus dated November 16, 2017 of Teleflex Incorporated. The information in this Pricing Term Sheet supplements the Preliminary Prospectus, supersedes the information in the Preliminary Prospectus to the extent it is inconsistent with the information in the Preliminary Prospectus and is otherwise qualified in its entirety by reference to the Preliminary Prospectus. Capitalized terms used in this Pricing Term Sheet but not defined have the meanings given them in the Preliminary Prospectus.
Issuer: | Teleflex Incorporated | |
Securities Offered: | 4.625% Senior Notes due 2027 (the Notes) | |
Aggregate Principal Amount: | $500,000,000 | |
Public Offering Price: | 100.000% | |
Gross Proceeds: | $500,000,000 | |
Net Proceeds to Issuer (before expenses): | $493,700,000, after deducting the Underwriters discount | |
Maturity Date: | November 15, 2027 | |
Coupon: | 4.625% | |
Yield to Maturity: | 4.625% | |
Spread to Treasury: | 227 bps | |
Benchmark Treasury: | UST 2.250% due November 15, 2027 | |
Interest Payment Dates: | May 15 and November 15, commencing on May 15, 2018 | |
Interest Payment Record Dates: | May 1 and November 1 |
Equity Clawback: | Prior to November 15, 2020, up to 40% may be redeemed at 104.625% plus accrued and unpaid interest | |
Optional Redemption: | On or after the dates set forth below at the prices set forth below plus accrued and unpaid interest:
November 15, 2022: 102.313% November 15, 2023: 101.542% November 15, 2024: 100.771% November 15, 2025 and thereafter: 100.000% | |
Make-whole Call: | Prior to November 15, 2022, at a make-whole premium based on Treasury Rate plus 50 basis points | |
Change of Control Triggering Event: | Putable at 101% plus accrued and unpaid interest | |
Joint Book-Running Managers: | J.P. Morgan Securities LLC Merrill Lynch,
Pierce, Fenner & Smith PNC Capital Markets LLC | |
Co-Managers | Citizens Capital Markets, Inc. DNB Markets, Inc. HSBC Securities (USA) Inc. MUFG Securities Americas Inc. SMBC Nikko Securities America, Inc. Wells Fargo Securities, LLC Capital One Securities, Inc. Citigroup Global Markets Inc. Fifth Third Securities, Inc. U.S. Bancorp Investments, Inc. Guggenheim Securities, LLC | |
Trade Date: | November 16, 2017 | |
Settlement Date: | November 20, 2017 (T+2) | |
CUSIP / ISIN: | 879369 AF3 / US879369AF39 | |
Denominations: | $2,000 and integral multiples of $1,000 in excess of $2,000 |
This material is strictly confidential and has been prepared by the Issuer solely for use in connection with the proposed offering of the securities described in the Preliminary Prospectus. This material is personal to each offeree and does not constitute an offer to any other person or the public generally to subscribe for or otherwise acquire the securities. Please refer to the Preliminary Prospectus for a complete description.
The Issuer has filed a Registration Statement (including a Preliminary Prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the Preliminary 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 J.P. Morgan toll-free at (866) 846-2874, or from Merrill Lynch, Pierce, Fenner & Smith Incorporated at 200 North College Street, 3rd Floor, Charlotte, NC 28255-0001 Attn: Prospectus Department or by e-mail at dg.prospectus_requests@baml.com, or from PNC Capital Markets LLC at 225 Fifth Avenue, Three PNC Plaza, 10th Floor, Pittsburgh, PA 15222 or by calling (855) 881-0687.
This communication is not an offer to sell the securities and it is not a solicitation of an offer to buy the securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
Exhibit 4.2
Execution Version
TELEFLEX INCORPORATED
as Issuer
EACH OF THE GUARANTORS PARTY HERETO
as Guarantors
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Fourth Supplemental Indenture
Dated as of November 20, 2017
to the Indenture dated as of
May 16, 2016
4.625% Senior Notes due 2027
TABLE OF CONTENTS
PAGE | ||||||
ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||||
Section 1.01 |
Scope of Supplemental Indenture | 1 | ||||
Section 1.02 |
Definitions | 2 | ||||
ARTICLE 2. THE NOTES |
20 | |||||
Section 2.01 |
Title and Terms; Payments | 20 | ||||
Section 2.02 |
Book-Entry Provisions for Global Notes | 21 | ||||
Section 2.03 |
Repurchase and Cancellation | 22 | ||||
ARTICLE 3. REDEMPTION AND PREPAYMENT |
22 | |||||
Section 3.01 |
Notice of Redemption | 22 | ||||
Section 3.02 |
Effect of Notice of Redemption | 22 | ||||
Section 3.03 |
Optional Redemption | 23 | ||||
Section 3.04 |
Mandatory Redemption | 24 | ||||
ARTICLE 4. COVENANTS |
24 | |||||
Section 4.01 |
Reports | 24 | ||||
Section 4.02 |
[RESERVED] | 26 | ||||
Section 4.03 |
[RESERVED] | 26 | ||||
Section 4.04 |
[RESERVED] | 26 | ||||
Section 4.05 |
[RESERVED] | 26 | ||||
Section 4.06 |
[RESERVED] | 26 | ||||
Section 4.07 |
Liens | 26 | ||||
Section 4.08 |
Offer to Repurchase Upon Change of Control | 26 | ||||
Section 4.09 |
Exempted Transactions | 28 | ||||
Section 4.10 |
Additional Note Guarantees | 28 | ||||
Section 4.11 |
Sale and Leaseback Transactions | 28 | ||||
ARTICLE 5. SUCCESSORS |
29 | |||||
Section 5.01 |
Merger, Consolidation or Sale of Assets | 29 | ||||
Section 5.02 |
Successor Corporation Substituted | 30 | ||||
Section 5.03 |
Opinion of Counsel to Be Given to Trustee | 30 | ||||
ARTICLE 6. DEFAULT AND REMEDIES |
30 | |||||
Section 6.01 |
Events of Default | 30 | ||||
Section 6.02 |
Acceleration | 32 | ||||
Section 6.03 |
Other Remedies | 33 | ||||
Section 6.04 |
Waiver of Past Defaults | 33 | ||||
Section 6.05 |
Control by Majority | 33 | ||||
Section 6.06 |
Limitation on Suits | 34 | ||||
Section 6.07 |
Collection Suit by Trustee | 34 |
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ARTICLE 7. LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
34 | |||||
Section 7.01 |
Option to Effect Legal Defeasance or Covenant Defeasance | 34 | ||||
Section 7.02 |
Legal Defeasance and Discharge | 34 | ||||
Section 7.03 |
Covenant Defeasance | 35 | ||||
Section 7.04 |
Conditions to Legal or Covenant Defeasance | 36 | ||||
Section 7.05 |
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions | 37 | ||||
Section 7.06 |
Repayment to Company | 37 | ||||
Section 7.07 |
Reinstatement | 37 | ||||
ARTICLE 8. SATISFACTION AND DISCHARGE |
38 | |||||
Section 8.01 |
Satisfaction and Discharge of the Supplemental Indenture | 38 | ||||
Section 8.02 |
Application of Trust Money | 39 | ||||
ARTICLE 9. NOTE GUARANTEES |
39 | |||||
Section 9.01 |
Guarantee | 39 | ||||
Section 9.02 |
[RESERVED] | 40 | ||||
Section 9.03 |
Limitation on Guarantor Liability | 40 | ||||
Section 9.04 |
Execution and Delivery | 41 | ||||
Section 9.05 |
Guarantors May Consolidate, etc., on Certain Terms | 41 | ||||
Section 9.06 |
Releases | 41 | ||||
ARTICLE 10. SUPPLEMENTAL INDENTURES |
42 | |||||
Section 10.01 |
Supplemental Indentures Without Consent of Holders | 42 | ||||
Section 10.02 |
Supplemental Indentures With Consent of Holders | 43 | ||||
Section 10.03 |
Notice of Amendment or Supplement | 44 | ||||
ARTICLE 11. MISCELLANEOUS |
44 | |||||
Section 11.01 |
Governing Law | 44 | ||||
Section 11.02 |
No Security Interest Created | 44 | ||||
Section 11.03 |
Trust Indenture Act | 45 | ||||
Section 11.04 |
Benefits of Supplemental Indenture | 45 | ||||
Section 11.05 |
Calculations | 45 | ||||
Section 11.06 |
Effect of Headings and Table of Contents | 45 | ||||
Section 11.07 |
Execution in Counterparts | 45 | ||||
Section 11.08 |
Separability Clause | 45 | ||||
Section 11.09 |
Ratification of Original Indenture | 45 | ||||
Section 11.10 |
The Trustee | 45 | ||||
Section 11.11 |
No Recourse Against Others | 46 |
ii
EXHIBIT
Exhibit A | Form of Note | A-1 | ||||
Exhibit B | Form of Supplemental Indenture | B-1 |
iii
FOURTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of November 20, 2017, among Teleflex Incorporated, a Delaware corporation (the Company), the Guarantors listed on Schedule A hereto (the Guarantors) and Wells Fargo Bank, National Association (the Trustee), as trustee under the Indenture, dated as of May 16, 2016, between the Company and the Trustee (as amended or supplemented from time to time in accordance with the terms thereof, the Original Indenture).
RECITALS OF THE COMPANY
WHEREAS, the Company executed and delivered the Original Indenture to the Trustee to provide, among other things, for the issuance, from time to time, of the Companys unsecured Securities, in an unlimited aggregate principal amount, in one or more series to be established by the Company under, and authenticated and delivered as provided in, the Original Indenture;
WHEREAS, Section 9.1(j) of the Original Indenture provides for the Company and the Trustee to enter into supplemental indentures to the Original Indenture to establish the form and terms of Securities of any series as contemplated by Sections 2.1 and 2.2 of the Original Indenture;
WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, pursuant to the terms of the Original Indenture, the Company desires to establish a new series of its Securities to be known as its 4.625% Senior Notes due 2027 (the Notes), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Original Indenture and this Supplemental Indenture;
WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note and the Form of Assignment and Transfer contemplated under the terms of the Notes are to be substantially in the forms hereinafter provided; and
WHEREAS, the Company and the Guarantors have requested that the Trustee execute and deliver this Supplemental Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the purchases of the Notes by the Holders thereof, it is mutually agreed, for the benefit of the Company and the Guarantors and the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Scope of Supplemental Indenture.
Unless otherwise stated, the terms and provisions contained in the Original Indenture shall constitute, and are hereby expressly made, a part of this Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. Notwithstanding any of the foregoing to the contrary, the provisions of this Supplemental Indenture shall supersede any corresponding provisions in the Original Indenture, and to the extent any provision of the Original Indenture conflicts with the express provisions of this Supplemental Indenture, the provisions of this Supplemental Indenture shall govern and be controlling. The changes, modifications and supplements to the Original Indenture effected by this
1
Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time, and shall not apply to any other Securities that may be issued under the Original Indenture unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements.
Section 1.02 Definitions.
For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article 1 shall have the meanings assigned to them in this Article 1 and include the plural as well as the singular;
(b) all words, terms and phrases defined in the Original Indenture (but not otherwise defined herein) shall have the same meanings as in the Original Indenture;
(c) all other terms used herein that are defined in the TIA, either directly or by reference therein, shall have the meanings assigned to them in the TIA;
(d) all accounting terms not otherwise defined herein shall have the meanings assigned to them in accordance with GAAP, and, except as otherwise herein expressly provided, the term GAAP with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this instrument; and
(e) the words herein, hereof and hereunder and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision.
2024 Senior Notes means the Companys 5.25% Senior Notes due 2024 outstanding on the date hereof.
2026 Senior Notes means the Companys 4.875% Senior Notes due 2026 outstanding on the date hereof.
Additional Notes has the meaning specified in Section 2.01.
Affiliate of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, control, as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms controlling, controlled by and under common control with have correlative meanings. No Person (other than the Company or any Subsidiary of the Company) in whom a Securitization Subsidiary makes an Investment in connection with a Qualified Securitization Facility will be deemed to be an Affiliate of the Company or any of its Subsidiaries solely by reason of such Investment.
Agent Members has the meaning specified in Section 2.02(a).
Applicable Premium means, with respect to any Note being redeemed pursuant to Section 3.03(b) on any redemption date, the greater of:
2
(1) 1.0% of the principal amount of the Note; or
(2) the excess, if any, of:
(a) the present value at such redemption date of (i) the redemption price of the Note at November 15, 2022 (such redemption price being set forth in the table appearing in Section 3.03(d)) plus (ii) all required interest payments due on the Note through November 15, 2022, (excluding accrued but unpaid interest to the redemption date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over
(b) the principal amount of the Note.
Attributable Indebtedness means, with respect to any Sale and Lease Back Transaction, at the time of determination, the lesser of (1) the sale price of the property so leased multiplied by a fraction the numerator of which is the remaining portion of the base term of the lease included in such transaction and the denominator of which is the base term of such lease, and (2) the total obligation (discounted to the present value at the implicit interest factor, determined in accordance with GAAP, included in the rental payments) of the lessee for rental payments (other than amounts required to be paid on account of property taxes as well as maintenance, repairs, insurance, water rates and other items which do not constitute payments for property rights) during the remaining portion of the base term of the lease included in such transaction.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular person (as that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms Beneficially Owns and Beneficially Owned have a corresponding meaning.
Board of Directors means:
(1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the board of directors of the general partner of the partnership;
(3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person serving a similar function.
Calculation Date has the meaning specified in the definition of Consolidated Net Secured Leverage Ratio.
Capital Lease Obligation of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
3
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities exchangeable or convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
Captive Insurance Subsidiary means any captive insurance company that is a Subsidiary of the Company or any of its Subsidiaries.
Cash Equivalents means:
(1) United States dollars, Canadian dollars, pounds sterling, euros or yen (or any other currency held temporarily to manage the exposure to such other currency);
(2) in the case of any Foreign Subsidiary that is a Subsidiary, such local currencies held by it from time to time in the ordinary course of business; and (c) the currency of any country that is a member of the Organization for Economic Cooperation and Development;
(3) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than 24 months from the date of acquisition;
(4) certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any lender party to a Credit Facility or with any commercial bank having capital and surplus in excess of $500.0 million;
(5) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (3) and (4) above entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6) commercial paper having one of the two highest ratings obtainable from Moodys or S&P and, in each case, maturing within 12 months after the date of acquisition;
(7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moodys or S&P, respectively (or, if at any time neither Moodys nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement agency) and in each case maturing within 24 months after the date of creation or acquisition thereof;
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(8) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade rating from either Moodys or S&P with maturities of 12 months or less from the date of acquisition; and
(9) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (8) of this definition.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any Person (including any person (as that term is used in Section 13(d)(3) of the Exchange Act)) other than to the Company or one of its Subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any Person (including any person (as defined above)) becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the Company, measured by voting power rather than number of shares;
(3) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company is converted into or exchanged for cash, securities or other property, other than any such transaction where:
(a) the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for the Voting Stock of such surviving or transferee Person (or any direct or indirect parent thereof) immediately after giving effect to such transaction; and
(b) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the Company or such surviving or transferee Person (or any direct or indirect parent thereof) immediately after giving effect to such transaction.
Company has the meaning specified in the first paragraph of this Supplemental Indenture.
Consolidated EBITDA means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication, in each case to the extent taken into account in computing such Consolidated Net Income:
(1) provision for taxes based on income, profits or capital, including, without limitation, state, franchise and similar taxes (such as the Pennsylvania capital tax) and foreign withholding taxes of such Person and its Subsidiaries for such period; plus
(2) the Fixed Charges of such Person and its Subsidiaries for such period; plus
(3) any foreign currency translation losses (including losses related to currency remeasurements of Indebtedness) of such Person and its Subsidiaries for such period; plus
(4) [reserved]; plus
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(5) depreciation, amortization (including amortization of intangibles and other assets but excluding amortization of prepaid cash expenses that were paid in a prior period), and any other non-cash charges, including any expenses or losses related to mark-to-market charges related to pension and post-retirement plans, non-cash costs associated with inventory purchase price adjustments and in process research and development, any write offs, write downs, losses or items and expenses, in each case, to the extent that such depreciation, amortization and other non-cash charges or expenses were deducted in computing Consolidated Net Income, but excluding any such non-cash charge or expense to the extent that it represents an accrual of or reserve for cash charges or expenses in any future period or amortization of a prepaid cash charge or expense that was paid in a prior period; plus
(6) to the extent actually reimbursed, expenses incurred to the extent covered by indemnification provisions in any agreement in connection with any acquisition permitted under the Indenture; plus
(7) any contingent or deferred payments (including earn-out payments, non-compete payments and consulting payments but excluding ongoing royalty payments) made in connection with any acquisition permitted under the Indenture; plus
(8) deferred financing fees and milestone payments in connection with any Investment or series of related Investments permitted under the Indenture; plus
(9) costs of surety bonds in connection with financing activities; plus
(10) the amount of factually supportable and identifiable cost savings related to operational efficiencies, expense reductions, strategic initiatives or improvements or other synergies, in each case, projected by the Company in good faith to be realized based upon actions taken, committed to be taken or reasonably expected to be taken within 18 months of the date of determination (calculated on a pro forma basis as though such cost savings, improvements and synergies had been realized on the first day of such period) (without duplication of the amount of actual benefit realized during such period from such actions), which cost savings, improvements and synergies can be reasonably computed, as certified in writing by a responsible financial or accounting officer of the Company; plus
(11) any loss from discontinued operations and any loss on disposal of discontinued operations; minus
(12) any foreign currency translation gains (including gains related to currency remeasurements of Indebtedness) of such Person and its Subsidiaries for such period; minus
(13) non-cash gains, including any gains related to mark-to-market gains related to pension and post-retirement plans, other than the accrual of revenue in the ordinary course of business and excluding any non-cash gains which represent the reversal of any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period; minus
(14) any unusual or non-recurring gains for such period; minus
(15) any income from discontinued operations and any gain on disposal of discontinued operations,
in each case, on a consolidated basis and determined in accordance with GAAP.
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Consolidated Net Income means, with respect to any specified Person for any period, the aggregate of the net income (loss) of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP and without any reduction in respect of preferred stock dividends; provided that:
(1) any after-tax effect of extraordinary, non-recurring or unusual losses, charges or premiums including, but not limited to, any expenses or charges related to any Equity Offering, incurrence of Indebtedness permitted to be incurred under the Indenture, acquisition, restructuring, integration (including, without limitation, the sale, closure or consolidation of facilities and start-up costs related to new facilities), transition, executive recruiting, severance (including, but not limited to, any severance payments related to management employment contracts), relocation costs and curtailments or modifications to pension and post-retirement employee benefit plans, recapitalization or the amendment, modification or refinancing of Indebtedness (including a refinancing thereof) (whether or not successful) (for the avoidance of doubt, the losses, charges and premiums identified in this clause include, without limitation, those related to the refinancing transactions undertaken by the Company in January 2017, the Transaction Costs, any future losses, charges or premiums associated with the prepayment and the related prepayment make-whole amounts of any other refinancings undertaken in the future and any amounts paid or charges incurred in connection with the termination of interest rate swaps entered into in the future in connection with the Credit Facilities), will be excluded;
(2) all extraordinary losses and expenses and all gains and losses realized in connection with any asset sale (without regard to the dollar limitation in the definition thereof) or other disposition, disposition of securities or early extinguishment of Indebtedness, together with any related provision for taxes on any such gain, will be excluded;
(3) the net income and loss of any Person that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash (or to the extent converted into cash or Cash Equivalents) to the specified Person or a Subsidiary of the Person;
(4) [reserved];
(5) the cumulative effect of a change in accounting principles will be excluded;
(6) non-cash gains and losses attributable to movement in the mark-to-market valuation of (a) Hedging Obligations pursuant to FASB Accounting Standards Codification Topic 815 Derivatives and Hedging, (b) Permitted Convertible Indebtedness (as such term is defined in the indenture governing the 2026 Senior Notes), (c) any Permitted Convertible Indebtedness Call Transaction (as such term is defined in the indenture governing the 2026 Senior Notes) and (d) foreign currencies or derivative instruments pursuant to GAAP, will be excluded;
(7) any net unrealized gains or losses (after any offset) with respect to Hedging Obligations will be excluded;
(8) (i) any non-cash compensation charges and expenses recorded from grants of stock appreciation or similar rights, phantom equity, stock options, restricted stock, units or other rights to officers, directors, managers or employees and (ii) non-cash income (loss) attributable to deferred compensation plans or trusts, shall be excluded;
(9) any impairment charge, asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded;
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(10) any amortization of deferred charges or debt discount resulting from the application of FASB Accounting Standards Codification Topic 470-20DebtDebt with Conversion and Other Options (formerly FASB Staff Position No. APB 14-1Accounting for Convertible Debt Instruments That May Be Settled in Cash Upon Conversion (Including Partial Cash Settlement)) will be excluded;
(11) accruals and reserves that are established within twelve months after the date of this Supplemental Indenture that are so required to be established as a result of the Transactions in accordance with GAAP will be excluded; and
(12) to the extent covered by insurance or indemnification and actually reimbursed, or, so long as the Company has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is (a) not denied by the applicable carrier or indemnifying party in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), losses and expenses with respect to liability or casualty events or business interruption shall be excluded.
Consolidated Net Secured Leverage Ratio means, as of any date of determination, the ratio of (1) the Indebtedness of the Company that is outstanding and that is secured by a Lien on the assets of the Company or any of its Subsidiaries as of such date minus Cash Equivalents included on the consolidated balance sheet of the Company as of the end of the most recent fiscal quarter for which internal financial statements are available immediately preceding the date of determination and still held by the Company as of such date to (2) the Consolidated EBITDA of the Company for the then most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of determination, in each case with such pro forma adjustments as are consistent with the pro forma adjustment provisions set forth in this definition.
In addition, for purposes of calculating the Consolidated Net Secured Leverage Ratio:
(1) Investments, acquisitions, dispositions and mergers or consolidations that have been made by the specified Person or any of its Subsidiaries, or any Person or any of its Subsidiaries acquired by the specified Person or any of its Subsidiaries, and including all related financing transactions and including increases in ownership of Subsidiaries, during the four-quarter reference period or subsequent to such reference period and on or prior to the date on which the event for which the calculation of the Consolidated Net Secured Leverage Ratio is made (the Calculation Date), or that are to be made on the Calculation Date, will be given pro forma effect (as determined in good faith by a responsible financial or accounting officer of the Company) as if they had occurred on the first day of the four-quarter reference period;
(1) the Consolidated EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded;
(2) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses (and ownership interests therein) disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Subsidiaries following the Calculation Date;
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(3) if any Indebtedness bears a floating rate of interest, the interest expense on such Indebtedness will be calculated as if the rate in effect on the Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as of the Calculation Date in excess of 12 months).
For purposes of this definition, whenever pro forma effect is to be given to an Investment, acquisition, disposition and merger or consolidation, the pro forma calculations shall include factually supportable and identifiable pro forma cost savings related to operational efficiencies, expense reductions, strategic initiatives or improvements or other synergies, in each case, projected by the Company in good faith to be realized based upon actions taken, committed to be taken or reasonably expected to be taken within 18 months of the Calculation Date (without duplication of the amount of actual benefit realized during such period from such actions), which cost savings, improvements and synergies can be reasonably computed, as certified in writing by a responsible financial or accounting officer of the Company. Interest on a Capital Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capital Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under revolving credit facilities computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period; or, if lower, the maximum commitments under such revolving credit facilities as of the applicable Calculation Date. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.
continuing means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.
Corporate Trust Office means the address of the Trustee specified in Section 12.2 of the Original Indenture or such other address as to which the Trustee may give notice to the Company.
Covenant Defeasance has the meaning specified in Section 7.03.
Credit Agreement means that certain Amended and Restated Credit Agreement, dated as of January 20, 2017, by and among the Company, the guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and Bank of America, N.A. and PNC Bank, National Association, as Co-Syndication Agents, including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced in any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities to institutional investors) in whole or in part from time to time.
Credit Facilities means, one or more debt facilities (including, without limitation, the Credit Agreement) or other financing arrangements (including, without limitation, commercial paper facilities or indentures), in each case, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit or other indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, in each case, as amended, supplemented, restated, modified, renewed, refunded, replaced in
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any manner (whether upon or after termination or otherwise) or refinanced (including by means of sales of debt securities) in whole or in part from time to time, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted, to the extent applicable, under Section 4.07) or adds Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
Custodian means the Trustee, as custodian with respect to the Notes (so long as the Notes constitute Global Notes), or any successor entity.
Default means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
Depository means initially The Depository Trust Company until a successor Depository shall have become such pursuant to the applicable provisions of the Indenture, and thereafter Depository shall mean such successor Depository.
Domestic Subsidiary means any Subsidiary of the Company that is, at the time of determination, organized under the laws of the United States or any state of the United States or the District of Columbia.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
Equity Offering means a public or private sale either:
(1) | of Equity Interests of the Company by the Company (other than to a Subsidiary of the Company), or |
(2) | of Equity Interests of a direct or indirect parent entity of the Company (other than to the Company or a Subsidiary of the Company) to the extent that the net proceeds therefrom are contributed to the common equity capital of the Company. |
Event of Default has the meaning specified in Section 6.01.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Fair Market Value means the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Board of Directors of the Company (unless otherwise provided in the Indenture).
Fall Away Date has the meaning specified in Section 9.06.
FASB means Financial Accounting Standards Board.
Fixed Charges means, with respect to any specified Person for any period, the sum, without duplication, of:
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(1) (a) the consolidated interest expense of such Person and its Subsidiaries for such period, to the extent such expense was deducted in computing Consolidated Net Income, including, without limitation, (a) amortization of debt issuance costs and original issue discount, (b) non-cash interest payments, (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (c) the interest component of any deferred payment obligations, (d) the interest component of all payments associated with Capital Lease Obligations, (e) commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers acceptance financings, and excluding, (v) penalties and interest relating to taxes, (w) any expense resulting from the discounting of Indebtedness in connection with the application of recapitalization or purchase accounting, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, and original issue discount with respect to Indebtedness issued in connection with the Transactions or any intercompany Indebtedness, (y) any expensing of bridge, commitment and other financing fees in connection with any acquisitions after the date of this Supplemental Indenture and (z) commissions, discounts, yield and other fees and charges (including interest) incurred in connection with any Qualified Securitization Facility or any other transaction pursuant to which the Company or any of its Subsidiaries may sell, convey or otherwise transfer or grant a security interest in any accounts receivable, Securitization Assets or related assets of the type specified in the definition of Qualified Securitization Facility, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates (but excluding any one-time cash costs associated with breakage); plus
(b) the consolidated interest expense of such Person and its Subsidiaries that was capitalized during such period; plus
(c) any interest on Indebtedness of another Person that is guaranteed by such Person or one of its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(d) all dividends, whether paid or accrued and whether or not in cash, on any series of preferred stock of such Person or any of its Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company or to the Company or a Subsidiary of the Company; minus
(2) (a) interest income of such Person and its Subsidiaries for such period; and
(b) any amortization of deferred charges or debt discount resulting from the application of FASB Accounting Standards Codification Topic 470-20DebtDebt with Conversion and Other Options (formerly FASB Staff Position No. APB 14-1Accounting for Convertible Debt Instruments That May Be Settled in Cash Upon Conversion (Including Partial Cash Settlement)).
Foreign Subsidiary means, with respect to any Person, any Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia, and any Subsidiary of such Foreign Subsidiary.
Form of Assignment and Transfer means the Form of Assignment and Transfer attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.
GAAP means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect on the date of this Supplemental Indenture; provided that lease liabilities
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and associated expenses recorded by the Company pursuant to ASU 2016-02, Leases, shall not be treated as Indebtedness and shall not be included in consolidated interest expense or Fixed Charges, unless the lease liabilities would have been treated as capital lease obligations under GAAP as in effect prior to the adoption of ASU 2016-02, Leases (in which case such lease liabilities and associated expenses shall be treated as Capital Lease Obligations and included in consolidated interest expense and Fixed Charges under the Indenture).
Global Note means any Note that is a Global Security.
Guarantee of or by any Person means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof;
(2) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof;
(3) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; or
(4) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee will not include endorsements for collection or deposit in the ordinary course of business. In any computation of the Indebtedness or other liabilities of the obligor under any Guarantee, the Indebtedness or other obligations that are the subject of such Guarantee will be assumed to be direct obligations of such obligor.
Guarantors means any Subsidiary of the Company that issues a Note Guarantee by executing this Supplemental Indenture in accordance with the provisions of the Indenture or executes a supplemental indenture in the form attached hereto as Exhibit B, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the Indenture.
Hedging Obligations means, with respect to any specified Person, the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;
(2) other agreements or arrangements designed to manage interest rates or interest rate risk; and
(3) commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or any other agreements or arrangements designed to protect such Person against fluctuations in, or providing for the transfer or mitigation of risks related to, currency exchange rates or commodity prices, in each case, either generally or under specific contingencies.
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Holder means a person in whose name a Note is registered.
Immaterial Subsidiary means, as of any date, any Subsidiary that is a Wholly-Owned Subsidiary whose total assets do not exceed 2.5% of the consolidated assets of the Company and its Subsidiaries, determined as of the end of the fiscal quarter most recently ended for which financial statements are available; provided that (1) a Subsidiary will not be considered to be an Immaterial Subsidiary if it, directly or indirectly, guarantees or otherwise provides direct credit support for any other Indebtedness of the Company and (2) the aggregate amount of total assets of all Immaterial Subsidiaries shall not at any time exceed 5.0% of the consolidated assets of the Company and its Subsidiaries, determined as of the end of the fiscal quarter most recently ended for which financial statements are available.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person (excluding accrued interest (other than accrued interest or interest paid in kind that has accreted to the principal amount), accrued expenses and trade payables), whether or not contingent, in respect of borrowed money and evidenced by bonds, notes, debentures or similar instruments or letters of credit (or, without duplication, reimbursement agreements in respect thereof).
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the date of determination; and
(b) the amount of the Indebtedness of the other Person.
Indenture means the Original Indenture, as originally executed, and as supplemented by this Supplemental Indenture, entered into pursuant to the applicable provisions of the Indenture, which, together, provide for the issuance of and establish the form and terms of the Notes, and as may be further supplemented from time to time by one or more supplements thereto, and including, for all purposes of the Indenture and any such supplemental indenture, the provisions of the TIA that are deemed to be a part of and govern the Original Indenture, this Supplemental Indenture and any other such supplemental indenture, respectively.
Initial Notes has the meaning specified in Section 2.01.
Interest Payment Date means, with respect to the payment of interest on the Notes, each May 15 and November 15 of each year.
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Investment Grade means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by S&P, or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, the equivalent investment grade credit rating from any other nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company as a replacement agency.
Investments means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. Except as otherwise provided in the Indenture, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.
Issue Date means, with respect to the Notes, November 20, 2017.
Legal Defeasance has the meaning specified in Section 7.02.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and, except in connection with any Qualified Securitization Facility, any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided, that in no event shall an operating lease be deemed to constitute a Lien.
Moodys means Moodys Investors Service, Inc., and any successor to its rating agency business.
Net Proceeds from a Sale and Lease Back Transaction means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, all purchase price adjustments, earn-outs and contingency payment obligations to which a seller may become entitled after the closing of such Sale and Lease Back Transaction and all holdbacks, in each case, only as and when received in cash, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash form), in each case net of (without duplication): (1) all legal, accounting, title and transfer or recording tax expenses, brokers fees or commissions and other fees and expenses (including, without duplication, any repatriation costs associated with receipt by the applicable taxpayer of such proceeds) incurred, and all federal, state, provincial, foreign and local taxes (whether on account of income, gains or otherwise) required to be accrued as a liability under GAAP, as a consequence of such Sale and Lease Back Transaction; (2) all payments made on any Indebtedness which is secured by any assets subject to such Sale and Lease Back Transaction, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Sale and Lease Back Transaction, or by applicable law, be repaid out of the proceeds from such Sale and Lease Back Transaction; (3) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed in such Sale and Lease Back Transaction and retained by the Company or any Subsidiary after such Sale and Lease Back Transaction; (4) any portion of the purchase price from a Sale and Lease Back Transaction placed in escrow in connection with that Sale and Lease Back Transaction; provided, that upon the termination of that escrow, Net Proceeds will be increased by any portion of funds in the escrow that are
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released to the Company or any Subsidiary; and (5) the amount of any purchase price adjustment, contingent or deferred payment obligation that the Company and/or any Subsidiary is obligated to pay to another Person in connection with a Sale and Lease Back Transaction.
Note or Notes has the meaning specified in the fourth paragraph of the recitals of this Supplemental Indenture, and shall include any Additional Notes issued pursuant to Section 2.01.
Note Guarantee means the Guarantee by each Guarantor of the Companys obligations under the Indenture and the Notes, evidenced by the execution of this Supplemental Indenture or a supplemental indenture in the form of Exhibit B hereto by such Guarantor.
Obligations means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness.
Original Indenture has the meaning specified in the first paragraph of this Supplemental Indenture.
Outstanding with respect to the Notes, has the meaning specified in Section 2.9 of the Original Indenture with respect to Securities outstanding, as modified by Section 2.03.
Paying Agent has the meaning set forth in the Original Indenture, which shall initially be the Trustee, and shall be the person authorized by the Company to pay the principal amount of, and premium and interest, if any, on, any Notes on behalf of the Company.
Permitted Liens means:
(1) Liens on assets of the Company or any of its Subsidiaries securing Indebtedness and other Obligations under Credit Facilities that were permitted by the terms of the Indenture to be incurred pursuant to this clause (1) not to exceed $1.75 billion;
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property, shares of stock or other assets of a Person existing at the time such Person becomes a Subsidiary of the Company or is merged with or into or consolidated with the Company or any Subsidiary of the Company; provided that such Liens were not created or incurred in contemplation of such Person becoming a Subsidiary of the Company or such merger or consolidation and do not extend to any assets other than those of the Person that becomes a Subsidiary of the Company or is merged with or into or consolidated with the Company or any Subsidiary of the Company;
(4) Liens on property (including Capital Stock) or other assets existing at the time of acquisition of such property or assets by the Company or any Subsidiary of the Company; provided that such Liens were in existence prior to such acquisition and not incurred in contemplation of, such acquisition;
(5) Liens to secure the performance of statutory obligations, insurance, surety or appeal bonds, workers compensation obligations, performance bonds or other obligations of a like nature incurred in the ordinary course of business (including Liens to secure letters of credit issued to assure payment of such obligations) and any Liens in favor of, or required by contracts with, governmental entities;
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(6) Liens to secure Indebtedness represented by mortgage financings or purchase money obligations;
(7) Liens existing on the date of this Supplemental Indenture;
(8) Liens for taxes, assessments or governmental charges or claims that are not yet overdue for a period of 30 days or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;
(9) Liens imposed by law, such as carriers, warehousemens, landlords and mechanics Liens, in each case, incurred in the ordinary course of business;
(10) survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes (or the Note Guarantees);
(12) [reserved];
(13) Liens on insurance policies and proceeds thereof, or other deposits, to secure insurance premium financings;
(14) filing of Uniform Commercial Code financing statements as a precautionary measure in connection with operating leases;
(15) bankers Liens, rights of setoff, Liens arising out of judgments or awards not constituting an Event of Default and notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings and for which adequate reserves have been made;
(16) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;
(17) Liens on specific items of inventory or other goods (and the proceeds thereof) of any Person securing such Persons obligations in respect of bankers acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(18) (a) leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries and do not secure any Indebtedness and (b) grants of grants of software and other technology licenses in the ordinary course of business;
(19) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(20) Liens on assets transferred to a Securitization Subsidiary or on assets of a Securitization Subsidiary, in either case, incurred in connection with a Qualified Securitization Facility;
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(21) Liens securing Indebtedness of Foreign Subsidiaries that relate solely to the Equity Interests or assets of Foreign Subsidiaries;
(22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(23) Liens (a) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection, (b) attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, and (c) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off);
(24) [reserved];
(25) Liens that are contractual rights of set-off (a) relating to pooled deposit or sweep accounts of the Company or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company and its Subsidiaries or (b) relating to purchase orders and other agreements entered into with customers of the Company or any of its Subsidiaries in the ordinary course of business;
(26) [reserved];
(27) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Subsidiaries (other than assets and property affixed or appurtenant thereto); and
(28) Liens incurred in the ordinary course of business of the Company or any Subsidiary of the Company with respect to obligations that do not exceed, as of any date of incurrence, the greater of (a) $350.0 million or (b) 5.0% of Total Assets.
For purposes of determining compliance with this definition, (x) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition, but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Company shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition.
Person means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
Physical Notes means certificated Notes that are not in global form and are registered in the name of the Holder and issued in denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof.
Qualified Securitization Facility means any Securitization Facility (a) constituting a securitization financing facility that meets the following conditions: (1) the Board of Directors of the Company shall have determined in good faith that such Securitization Facility (including financing terms, covenants, termination events and other provisions) is in the aggregate economically fair and reasonable to the Company and the applicable Securitization Subsidiary, (2) all sales and/or contributions of
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Securitization Assets and related assets to the applicable Securitization Subsidiary are made at Fair Market Value (as determined in good faith by the Company) and (3) the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the Company) or (b) constituting a receivables financing facility.
Rating Agencies means Moodys and S&P or if Moodys or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company, which shall be substituted for Moodys or S&P or both, as the case may be.
Ratings Decline Period means the period that (i) begins on the earlier of (a) a Change of Control or (b) the first public notice of the intention by the Company to affect a Change of Control and (ii) ends 30 days following the consummation of such Change of Control; provided, that such period will be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by either of the Rating Agencies).
Ratings Event means (i) a downgrade by one or more gradations (including gradations within ratings categories, as well as between rating categories) or withdrawal of the rating of the Notes within the Ratings Decline Period by each of the Rating Agencies (unless the applicable Rating Agency shall have put forth a written statement to the effect that such downgrade is not attributable in whole or in part to the applicable Change of Control) and (ii) the Notes do not have an Investment Grade rating from any Rating Agency.
Registrar has the meaning specified in Section 2.4 of the Original Indenture with respect to the register with respect to the Notes.
Regular Record Date means, with respect to the payment of interest on the Notes, the May 1 (whether or not a Business Day) immediately preceding an Interest Payment Date on May 15 and the November 1 (whether or not a Business Day) immediately preceding an Interest Payment Date on November 15.
S&P means Standard & Poors Ratings Services, and any successor to its rating agency business.
Securitization Assets means the accounts receivable, royalty or other revenue streams and other rights to payment under a Qualified Securitization Facility that is a securitization financing facility (and not a receivables financing facility) and the proceeds thereof.
Securitization Facility means any of one or more receivables or securitization financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Company or any of its Subsidiaries (other than a Securitization Subsidiary) pursuant to which the Company or any of its Subsidiaries sells or grants a security interest in its accounts receivable or Securitization Assets or assets related thereto to either (a) a Person that is not a Subsidiary or (b) a Securitization Subsidiary that in turn sells its accounts receivable to a Person that is not a Subsidiary.
Securitization Subsidiary means any Subsidiary formed for the purpose of engaging in, and that solely engages in, one or more Qualified Securitization Facilities and other activities reasonably related thereto.
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Significant Subsidiary means any Subsidiary that would be a significant subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date of this Supplemental Indenture.
Stated Maturity means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date of this Supplemental Indenture, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership or limited liability company of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (b) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity.
Successor Company has the meaning specified in Section 5.02.
Supplemental Indenture has the meaning specified in the first paragraph hereof.
Total Assets means the total assets of the Company and the Subsidiaries, as shown on the most recent balance sheet of the Company for the then most recently ended fiscal quarter for which internal financial statements are available immediately preceding the date of determination, with such adjustments to Total Assets as are consistent with the pro forma adjustment provisions set forth in the definition of Consolidated Net Secured Leverage Ratio.
Transaction Costs means the costs, fees, expenses and premiums associated with the Transactions.
Transactions means the issuance of the Notes offered hereby, the use of the net proceeds therefrom as described under the caption Use of Proceeds in the prospectus supplement relating to the Notes, dated November 16, 2017, and other transactions in connection therewith or incidental thereto.
Treasury Rate means, as of any redemption date with respect to any Note being redeemed pursuant to Section 3.03(d), the yield to maturity as of the earlier of (a) such redemption date or (b) the date on which such notes are defeased or satisfied and discharged, of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to November 15, 2022; provided, however, that if the period from the redemption date to November 15, 2022, is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
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Trustee has the meaning set forth in the first paragraph of this Supplemental Indenture.
U.S. means the United States of America.
Voting Stock of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
Wholly-Owned Subsidiary of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
ARTICLE 2.
THE NOTES
Section 2.01 Title and Terms; Payments.
There is hereby established a series of Securities designated the 4.625% Senior Notes due 2027 initially limited in aggregate principal amount to $500,000,000, which amount shall be as set forth in a Company Order for the authentication and delivery of Notes pursuant to Section 2.3 of the Original Indenture.
The principal amount of Notes then Outstanding shall be payable at the Stated Maturity, which shall be November 15, 2027. Interest on the Notes shall accrue at a rate of 4.625% per annum, from the Issue Date or from the most recent date on which interest has been paid or duly provided for, until the principal thereof is paid or made available for payment. Interest shall be payable semi-annually in arrears on each Interest Payment Date, beginning on May 15, 2018, to the person in whose name a Note is registered on the Register at 5:00 p.m., New York City time, on the Regular Record Date immediately preceding the applicable Interest Payment Date. Interest will be computed on the basis of a 360-day year composed of twelve 30-day months. If any interest payment date, the maturity date, any redemption date, or any earlier required repurchase date of a note falls on a day that is not a business day, the required payment will be made on the next succeeding business day and no interest on such payment will accrue in respect of the delay.
The Company may, at its election and without notice to or the consent of the Holders of the Notes, hereafter issue additional Notes (Additional Notes) under the Indenture with the same terms and with the same CUSIP numbers as the Notes issued on the date of this Supplemental Indenture (the Initial Notes) in an unlimited aggregate principal amount. The Notes and such Additional Notes, if any, will be treated as a single class for all purposes of the Indenture, including waivers, amendments, redemptions and offers to purchase; provided that, if any such Additional Notes subsequently issued are not fungible for U.S. federal income tax purposes or securities law purposes with any Notes previously issued, such Additional Notes shall trade separately from such previously issued Notes under a separate CUSIP number but shall otherwise be treated as a single class with all other Notes issued under the Indenture.
The Form of Note shall be substantially as set forth in Exhibit A and the Form of Assignment and Transfer shall be substantially as set forth in Attachment 1 to Exhibit A, each of which is incorporated into and shall be deemed a part of this Supplemental Indenture, and in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by the Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined to be necessary or appropriate by the Officers of the Company executing such Notes, as evidenced by their execution of the Notes.
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The Company shall pay the principal of and interest on any Global Note in immediately available funds to the Depository or its nominee, as the case may be, as the registered Holder of such Global Note. The Company, through the Paying Agent, shall make all payments of principal, premium, if any, and interest, with respect to Physical Notes by wire transfer of immediately available funds to the accounts specified by the Holders of the Physical Notes or, if no such account is specified, by mailing a check to each such Holders registered address. The Company has initially designated the Trustee as its Paying Agent and its Registrar in respect of the Notes. The Company may, however, change the Paying Agent or the Registrar for the Notes without prior notice to the Holders thereof, and the Company or one of its Subsidiaries may act as the Paying Agent or the Registrar for the Notes.
A Holder may transfer or exchange Notes at the office of the Registrar in accordance with Section 2.7 of the Original Indenture.
Section 2.02 Book-Entry Provisions for Global Notes
(a) The Notes initially shall be issued in the form of one or more Global Notes without interest coupons (i) registered in the name of Cede & Co., as nominee of the Depository and (ii) delivered to the Trustee as custodian for the Depository.
Members of, or participants in, the Depository (Agent Members) shall have no rights under this Supplemental Indenture or the Original Indenture with respect to any Global Note held on their behalf by the Depository, or the Trustee as its custodian, or under the Global Note, and Cede & Co., or such other person designated by the Depository as its nominee, may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of any Holder.
(b) Transfers of Global Notes shall be limited to transfers in whole, but not in part, to the Depository, its successors or their respective nominees. Notwithstanding anything to the contrary in Section 2.7 of the Original Indenture, interests of beneficial owners in a Global Note may be transferred or exchanged, in whole or in part, for Physical Notes, only if:
(1) the Depository (a) notifies the Company that it is unwilling or unable to continue as depositary for the Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act and, in either case, the Company fails to appoint a successor depositary within 90 days of such event;
(2) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Physical Notes; or
(3) there has occurred and is continuing a Default or Event of Default with respect to the Notes and the Depository requests such certification of the Global Note,
in each case in accordance with the rules and procedures of the Depository. Other than as set forth in this Section 2.02(b), the Notes shall remain in global form as Global Notes.
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(c) In connection with any transfer or exchange of a portion of the beneficial interest in the Global Note to beneficial owners pursuant to Section 2.7 of the Original Indenture, as modified by this Section 2.02, the Registrar shall (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Notes of like tenor and amount in accordance with Section 2.7 of the Original Indenture, as modified by this Section 2.02.
(d) In connection with the transfer of the entire Global Note to beneficial owners pursuant to Section 2.7 of the Original Indenture, as modified by this Section 2.02, the Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial interest in the Global Note, an equal aggregate principal amount of Physical Notes of authorized denominations and the same tenor.
(e) The Holder of Global Notes may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Supplemental Indenture, Original Indenture or the Notes.
Section 2.03 Repurchase and Cancellation.
To the extent permitted by law, the Company may at any time and from time to time repurchase Notes in open market purchases or by tender at any price or in negotiated transactions without giving prior notice to Holders. The Company shall surrender any Notes repurchased by the Company to the Trustee for cancellation in accordance with Section 2.12 of the Original Indenture and any such Notes repurchased by the Company shall be deemed to be no longer Outstanding. Any Notes surrendered for cancellation by the Company shall not be reissued or resold.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notice of Redemption.
(a) Notwithstanding Section 3.3 of the Original Indenture, notices of redemption will be delivered electronically in portable document format (pdf) or mailed by first class mail at least 15 but not more than 60 days before the redemption date to each holder of notes to be redeemed at its registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture.
Section 3.02 Effect of Notice of Redemption.
(a) Notwithstanding Section 3.4 of the Original Indenture, any notice of redemption may, at the Companys discretion, be subject to one or more conditions precedent, including, but not limited to, availability of borrowings under any Credit Facility, completion of a sale of common stock or other securities offering or corporate transaction. Once notice of redemption is provided in accordance with the Indenture, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price, subject only to the satisfaction or waiver of any conditions precedent.
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(b) If such notice of redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Companys discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied (which, for the avoidance of doubt, may be later than 60 days from the date such notice was delivered or mailed), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed.
Section 3.03 Optional Redemption.
(a) At any time prior to November 15, 2020, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under this Supplemental Indenture (including any Additional Notes), upon not less than 15 nor more than 60 days notice, at a redemption price equal to 104.625% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to, but not including, the date of redemption (subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant interest payment date), with the net cash proceeds of an Equity Offering; provided that:
(1) at least 60% of the aggregate principal amount of Notes originally issued under this Supplemental Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(2) the redemption occurs within 120 days of the date of the closing of such Equity Offering.
(b) At any time prior to November 15, 2022, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 15 nor more than 60 days notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
(c) Except pursuant to Sections 3.03(a) and (b), the Notes will not be redeemable at the Companys option prior to November 15, 2022.
(d) On or after November 15, 2022, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 15 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on November 15 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date:
Year |
Percentage | |||
2022 |
102.313 | % | ||
2023 |
101.542 | % | ||
2024 |
100.771 | % | ||
2025 and thereafter |
100.000 | % |
Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
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(e) If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes for redemption on a pro rata basis or, in the case of Global Notes, based on a method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate and in accordance with the applicable procedures of the Depository) unless otherwise required by law or applicable stock exchange or depositary requirements.
(f) No Notes of $2,000 or less shall be redeemed in part.
(g) Any redemption pursuant to this Section 3.03 shall be made pursuant to the provisions of Sections 3.01 and 3.02 hereof and Sections 3.1, 3.3, 3.5 and 3.6 of the Original Indenture.
(h) Notwithstanding the foregoing, in connection with any tender offer for the Notes, including a Change of Control Offer, if Holders of not less than 90% in aggregate principal amount of the outstanding notes validly tender and do not withdraw such notes in such tender offer and the Company or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not withdrawn by such holders, the Company or such third party will have the right upon not less than 15 nor more than 60 days prior notice, given not more than 15 days following such purchase date, to redeem all notes that remain outstanding following such purchase at a redemption price equal to the price offered to each other holder in such tender offer plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but not including, the date of such redemption; provided, that such redemption price shall not be less than 100% of the aggregate principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, thereon, to, but not including, the date of such redemption.
(i) If any Note is to be redeemed in part only, the notice of redemption that relates to that Note will state the portion of the principal amount of that Note that is to be redeemed. A new Note in principal amount equal to the unredeemed portion of the original Note will be issued in the name of the Holder of Notes upon cancellation of the original Note. Notes called for redemption become due on the date fixed for redemption, unless such redemption is conditioned on the happening of a future event. On the redemption date, interest ceases to accrue on Notes or portions of Notes redeemed unless the Company defaults in paying the applicable redemption price.
Section 3.04 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE 4.
COVENANTS
Section 4.01 Reports.
The provisions in Section 4.4 of the Original Indenture shall not apply with respect to the Notes, and this Section 4.01 supersedes the entirety thereof.
(a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the Holders of Notes or cause the Trustee to furnish to the Holders of Notes, within the time periods specified in the SECs rules and regulations (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act):
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(1) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports, including a Managements Discussion and Analysis of Financial Condition and Results of Operations and, with respect to the annual information only, a report thereon by the Companys certified independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.
All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. In addition, the Company will file a copy of each of the reports referred to in clauses (1) and (2) above with the SEC for public availability within the time periods specified in the rules and regulations (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act) applicable to such reports (unless the SEC will not accept such a filing) and will post the reports on its website within those time periods. The Company will at all times comply with TIA §314(a).
(b) For purposes of this Section 4.01, reports filed by the Company with the SEC via the EDGAR system or any successor system will be deemed to be furnished to the Holders as of the time such reports are filed with EDGAR or such successor system.
(c) If, at any time, the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing the reports specified in Section 4.01(a) with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Company will not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Companys filings for any reason, the Company will post the reports referred to in Section 4.01(a) on its website within the time periods that would apply if the Company were required to file those reports with the SEC.
(d) If any direct or indirect parent company of the Company becomes a Guarantor, the Company may satisfy its obligations in this Section 4.01 with respect to financial information relating to the Company by furnishing financial information relating to such other parent Guarantor; provided that if and so long as such parent Guarantor shall have Independent Assets or Operations (as defined below), the same is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such parent Guarantor, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone basis, on the other hand. Independent Assets or Operations means, with respect to any such parent Guarantor, that such parent Guarantors total assets or revenues, determined in accordance with GAAP and as shown on the most recent financial statements of such parent Guarantor, is more than 3.0% of such parent Guarantors corresponding consolidated amount.
(e) In addition, the Company and the Guarantors agree that, for so long as any Notes remain outstanding, if at any time they are not required to file with the SEC the reports required by this Section 4.01, they will furnish to the Holders of Notes and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(f) The Trustee shall have no responsibility whatsoever to monitor whether any filing or posting contemplated by this Section 4.01 has occurred. Delivery of any reports, information or documents pursuant to this Section 4.01 is for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
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Section 4.02 [RESERVED].
Section 4.03 [RESERVED].
Section 4.04 [RESERVED].
Section 4.05 [RESERVED].
Section 4.06 [RESERVED].
Section 4.07 Liens.
(a) Except as permitted under Section 4.09, the Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than Permitted Liens) securing Indebtedness upon any of their property or assets, now owned or hereafter acquired, unless (1) in the case of any Lien securing pari passu Indebtedness, the Notes are secured by a Lien that is senior in priority to or pari passu with such Lien and (2) in the case of any Lien securing subordinated Indebtedness, the Notes are secured by a Lien that is senior in priority to such Lien.
(b) Any Lien created for the benefit of the Holders of the Notes pursuant to Section 4.07(b) will provide by its terms that any such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Lien on such other Indebtedness, without any further action required of the Company, any Subsidiary or the Trustee.
(c) The expansion of Liens by virtue of accrual of interest, the accretion of accreted value, the payment of interest or dividends in the form of additional Indebtedness, amortization of original issue discount and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Indebtedness will not be deemed to be an incurrence of Liens for purposes of this Section 4.07.
(d) For purposes of determining compliance with this Section 4.07, (i) a Lien need not be incurred solely by reference to one category of Permitted Liens but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category) and (ii) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens or may be incurred in compliance with the terms described under Section 4.09, the Company shall, in its sole discretion, classify or may subsequently reclassify at any time such Lien (or any portion thereof) in any manner that complies with this Section 4.07 (including by complying with the terms described under Section 4.09) and the definition of Permitted Liens.
Section 4.08 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs and is accompanied by a Ratings Events (together, a Change of Control Triggering Event), each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes pursuant to an offer by the Company (a Change of Control Offer) on the terms set forth in this Supplemental Indenture. In the Change of Control Offer, the Company will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of purchase (the Change of Control Payment), subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date. Within thirty days following any Change of Control Triggering Event, the Company will deliver electronically in pdf format or mail a notice to each Holder with a copy to the Trustee or otherwise in accordance with the procedures of DTC describing the
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transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed or otherwise delivered (a Change of Control Payment Date), pursuant to the procedures required by the Indenture and described in such notice. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the Indenture by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased by the Company.
The Paying Agent will promptly send to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry in accordance with the applicable procedures of DTC) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.
(c) The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if:
(1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Company and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer; provided, however, in the event that such third party terminates, or defaults under, its offer, the Company will be required to make a Change of Control Offer treating the date of such termination or default as though it were the date of the Change of Control Triggering Event; or
(2) notice of redemption has been given pursuant to the Indenture as described above under Section 3.03, unless and until there is a default in payment of the applicable redemption price.
(d) Notwithstanding anything to the contrary contained in this Section 4.08, a Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditioned upon such Change of Control Triggering Event, if a definitive agreement is in place for the Change of Control at the time the Change of Control Offer is made.
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Section 4.09 Exempted Transactions.
(a) Notwithstanding Sections 4.09 and 4.11, the Company and any Subsidiary may (1) create, incur or assume any Lien upon any property or assets, or (2) consummate any Sale and Lease Back Transaction if: (i) the aggregate outstanding principal amount of all secured Indebtedness for borrowed money of the Company and its Subsidiaries that is secured by Liens on any of their property or assets, now owned or hereafter acquired, plus (ii) the aggregate Attributable Indebtedness in respect of Sale and Lease Back Transactions that is subject to the restriction on Sale and Lease Back Transactions described above does not exceed an amount that would cause the Consolidated Net Secured Leverage Ratio for the period immediately preceding the creation, incurrence or assumption of such a Lien or consummation of such Sale and Lease Back Transaction, as applicable, to be greater than 3.50 to 1.00, calculated on a pro forma basis after giving effect to the creation, incurrence or assumption of such Lien described above and/or such Attributable Indebtedness in respect of Sale and Lease Back Transactions that is subject to the restriction on Sale and Lease Back Transactions described above. The Company and any Subsidiary may guarantee any Lien created, incurred or assumed and any Sale and Lease Back Transaction consummated, in each case, in compliance with the terms described in this paragraph.
(b) In the event any Lien is created, incurred or assumed or any Sale and Lease Back Transaction is consummated, in each case, in reliance upon compliance with the Consolidated Net Secured Leverage Ratio described above, concurrently with creation, incurrence or assumption of any Permitted Lien, then solely for purposes of calculating the Consolidated Net Secured Leverage Ratio at such time (but, for the avoidance of doubt, not in any subsequent calculation of the Consolidated Net Secured Leverage Ratio at a subsequent time), the Consolidated Net Secured Leverage Ratio will be calculated without regard to the creation, incurrence or assumption of any such Permitted Lien.
Section 4.10 Additional Note Guarantees
If the Company or any of its Subsidiaries acquires or creates another Domestic Subsidiary that is a Wholly-Owned Subsidiary after the date of this Supplemental Indenture that guarantees or otherwise becomes an obligor with respect to any Indebtedness of the Company or any of its Subsidiaries under a Credit Facility, then such Domestic Subsidiary will become a Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel to the Trustee within 45 business days of the date such Domestic Subsidiary guarantees or otherwise becomes an obligor with respect to any Indebtedness of the Company or any of its Subsidiaries under a Credit Facility; provided that any such Domestic Subsidiary that constitutes an Immaterial Subsidiary, a Captive Insurance Subsidiary or a Securitization Subsidiary, as the case may be, need not become a Guarantor until such time as it ceases to be an Immaterial Subsidiary, a Captive Insurance Subsidiary or a Securitization Subsidiary, as the case may be. Each Note Guarantee of a Domestic Subsidiary that is a Wholly-Owned Subsidiary will provide by its terms that it will be automatically released under the circumstances described in Article 9. Beginning on the Fall Away Date and continuing at all times thereafter regardless of any subsequent changes in the ratings of the Notes, this Section 4.10 will permanently cease to be in effect with respect to the Notes.
The Company may elect, in its sole discretion, to cause any Subsidiary that is not otherwise required to be a Guarantor to become a Guarantor, in which case such Subsidiary shall not be required to comply with the 45 business day period described above.
Section 4.11 Sale and Leaseback Transactions.
(a) Except as permitted under Section 4.09, the Company will not, and will not permit any of its Subsidiaries to, engage in the sale or transfer by the Company or any Subsidiary of any property to a Person (other than the Company or a Subsidiary) and the taking back by the Company or such Subsidiary, as the case may be, of a lease of such property (a Sale and Leaseback Transaction) unless:
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(1) The Company or such Subsidiary could incur Indebtedness secured by a Lien on the property to be leased without equally and ratably securing the Notes;
(2) the property leased pursuant to such arrangement is sold for a price at least equal to such propertys fair value (as determined by the Company in good faith); or
(3) within 365 days of the effective date of any such Sale and Lease Back Transaction, the Company applies the Net Proceeds of the sale of the leased property, less the amount of Net Proceeds used to prepay, redeem or purchase the Notes, (i) to the prepayment or retirement of Indebtedness of the Company and its Subsidiaries (which may include the Notes) and/or (ii) the acquisition, construction or improvement of any property or assets.
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of Assets
The provisions in Article V of the Original Indenture shall not apply with respect to the Notes, and this Article 5 supersedes the entirety thereof.
(a) The Company will not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation), or (2) sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one or more related transactions, to another Person, unless:
(1) either:
(A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition has been made (the Successor Company) is an entity organized or existing under the laws of the United States, any state of the United States or the District of Columbia; and, if such entity is not a corporation, a co-obligor of the Notes is a corporation organized or existing under any such laws;
(2) the Successor Company (if other than the Company) assumes all the obligations of the Company under the Notes and this Supplemental Indenture pursuant to a supplemental indenture substantially in the form attached hereto as Exhibit B, or, in each case, pursuant to other documents or instruments reasonably satisfactory to the Trustee; and
(3) immediately after such transaction, no Default or Event of Default exists.
(b) The Successor Company will succeed to, and be substituted for, the Company under the Indenture and the Notes and the Company will automatically be released and discharged from its obligations under the Indenture and the Notes, but in the case of a lease of all or substantially all of the properties and assets of the Company and its Subsidiaries taken as a whole, the Company will not be released from the obligation to pay the principal of and interest on the Notes.
(c) Notwithstanding clause (3) of Section 5.01(a),
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(1) the Company or any Subsidiary may consolidate or amalgamate with or merge with or into or transfer all or part of its properties and assets to the Company or another Subsidiary, and
(2) the Company may merge with or into an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction.
Section 5.02 Successor Corporation Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer, lease or other disposition set forth in Section 5.01, in which the Company is not Successor Company and upon the assumption by the Successor Company by supplemental indenture executed and delivered to the Trustee of the due and punctual payment of the principal of and interest on all of the Notes, and the due and punctual performance and observance of all of the covenants and conditions of this Supplemental Indenture to be performed or satisfied by the Company, such Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Supplemental Indenture, with the same effect as if it had been named herein as the party of this first part, and the Company shall be discharged from its obligations under the Notes and this Supplemental Indenture, except in the case of any such lease, as provided in Section 5.01(b). Such Successor Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the Notes, issuable hereunder that theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in this Supplemental Indenture prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Notes that such Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Supplemental Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Supplemental Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance, transfer or other disposition upon compliance with this Article 5 the person named as the Company in the first paragraph of this Supplemental Indenture or any successor that shall thereafter have become such in the manner prescribed in this Article 5 may be dissolved, wound up and liquidated at any time thereafter and such person shall be discharged from its liabilities as obligor and maker of the Notes and from its obligations under this Supplemental Indenture with respect to the Notes.
Section 5.03 Opinion of Counsel to Be Given to Trustee. Prior to execution of any supplemental indenture pursuant to this Article 5, the Trustee shall receive an Officers Certificate and an Opinion of Counsel in accordance with Section 12.4 of the Original Indenture as conclusive evidence that consolidation, merger, sale, conveyance, transfer, lease or other disposition set forth in Section 5.01 and any such assumption complies with the provisions of this Article 5.
ARTICLE 6.
DEFAULT AND REMEDIES
Section 6.01 Events of Default.
Sections 6.7, 6.9, 6.10 and 6.11 in Article VI of the Original Indenture shall apply with respect to the Notes, and this Article 6 supersedes the remaining sections thereof.
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Each of the following events shall be an Event of Default wherever used herein with respect to the Notes, and, except to the extent set forth in this Section 6.01, the Notes shall not have the benefit of any Event of Default specified in Section 6.1 of the Original Indenture:
(1) default for 30 days in the payment when due of interest on the Notes;
(2) default in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the Notes;
(3) failure by the Company or any of its Subsidiaries to comply with the provisions described under Article 5 for 30 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding;
(4) [reserved];
(5) failure by the Company or any of its Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding to comply with any of the other agreements in the Indenture;
(6) default with respect to any mortgage, agreement or other instrument under which there may be outstanding, or by which may be secured or evidenced any Indebtedness for money borrowed in excess of $100.0 million in the aggregate by the Company or any of its Subsidiaries, whether such Indebtedness or Guarantee now exists, or is created after the date of this Supplemental Indenture, if that default:
(a) constitutes a failure to pay the principal or interest of any such Indebtedness or Guarantee when due and payable at its Stated Maturity, upon required repurchase, upon declaration or otherwise; or
(b) results in such Indebtedness becoming or being declared due and payable;
(7) failure by the Company or any of its Subsidiaries to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $100.0 million, which judgments are not paid, discharged or stayed, for a period of 60 days;
(8) prior to the Fall Away Date, except as permitted by the Indenture, any Note Guarantee of any Guarantor that is a Significant Subsidiary, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or any Guarantor that is a Significant Subsidiary, or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, or any Person acting on behalf of any such Guarantor or group of Guarantors, denies or disaffirms its obligations under its Note Guarantee; and
(9) the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an involuntary case,
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(c) consents to the appointment of a custodian of it or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due
in each case, pursuant to or within the meaning of Bankruptcy Law; or
(10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(b) appoints a custodian of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary; or
(c) orders the liquidation of the Company or any of its Subsidiaries that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days.
So long as any of the Notes are outstanding, the Company will deliver to the Trustee, within 30 days of any Officer becoming aware of any Default or Event of Default that is continuing, an Officers Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (9) or (10) of Section 6.01, with respect to the Company, any Subsidiary of the Company that is a Significant Subsidiary or any group of Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become due and payable immediately.
The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of all of the Holders of all the Notes, rescind an acceleration and its consequences under the Indenture, if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction, except a continuing Default or Event of Default in the payment of principal of, premium on, if any, or interest, if any, on the Notes.
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Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, premium on, if any, or interest, if any, on, the Notes or to enforce the performance of any provision of the Notes or the Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults
The Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may, on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of principal of, premium on, if any, or interest on, the Notes (including in connection with an offer to purchase); provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture with respect to the Notes; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
In the event of any Event of Default specified in Section 6.01(6), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the Notes) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 20 days after such Event of Default arose: (1) the Indebtedness or Note Guarantee that is the basis for such Event of Default has been discharged; or (2) Holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (3) the default that is the basis for such Event of Default has been cured.
Section 6.05 Control by Majority
Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or of exercising any trust or power conferred on it. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture that the Trustee determines is unduly prejudicial to the rights of any other Holders (it being understood that the Trustee does not have the affirmative duty to ascertain whether or not any such directions are unduly prejudicial to such Holders) of a Note or that could result in personal liability for the Trustee.
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Section 6.06 Limitation on Suits
In case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless:
(1) | such Holder has previously given the Trustee written notice that an Event of Default is continuing; |
(2) | Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; |
(3) | such Holder or Holders offer and, if requested, provide to the Trustee security or indemnity satisfactory to the Trustee against any loss, liability or expense; |
(4) | the Trustee does not comply with such request within 60 days after receipt of the request and the offer of security or indemnity; and |
(5) | during such 60-day period, Holders of a majority in aggregate principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with such request. |
Section 6.07 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as Trustee of an express trust against the Company for the whole amount of principal of, premium on, if any, and interest remaining unpaid on, the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
ARTICLE 7.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 7.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The provisions in Article VIII of the Original Indenture shall not apply with respect to the Notes, and this Article 7 supersedes the entirety thereof. The Company may at any time, at the option of its Board of Directors evidenced by a resolution set forth in an Officers Certificate, elect to have either Section 7.02 or 7.03 hereof be applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 7.
Section 7.02 Legal Defeasance and Discharge.
Upon the Companys exercise under Section 7.01 hereof of the option applicable to this Section 7.02, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 7.04 hereof, be deemed to have been discharged from their obligations with respect to the Indenture and all outstanding Notes (including the Note Guarantees) on the date the conditions set forth below are satisfied (hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Note Guarantees), which will thereafter be deemed to
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be outstanding only for the purposes of Section 7.05 hereof and the other Sections of this Supplemental Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Note Guarantees and the Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, premium on, if any, or interest on, such Notes when such payments are due from the trust referred to below;
(2) the Companys obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee under the Indenture, and the Companys and the Guarantors obligations in connection therewith; and
(4) this Article 7.
Following the Companys exercise of its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.
Subject to compliance with this Article 7, the Company may exercise its option under this Section 7.02 notwithstanding the prior exercise of its option under Section 7.03 hereof.
Section 7.03 Covenant Defeasance.
Upon the Companys exercise under Section 7.01 hereof of the option applicable to this Section 7.03, the Company and each of the Guarantors will, subject to the satisfaction of the conditions set forth in Section 7.04 hereof, be released from each of their obligations under the covenants contained in Article 4 hereof, clause (4) of Section 5.01 hereof and Sections 4.3, 4.5, 4.6 and 4.7 of the Original Indenture, in each case with respect to the outstanding Notes, and the Guarantors will be deemed to have been discharged from their obligations with respect to all Note Guarantees on and after the date the conditions set forth in Section 7.04 hereof are satisfied (hereinafter, Covenant Defeasance), and the Notes will thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but will continue to be deemed outstanding for all other purposes hereunder (it being understood that such Notes will not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of the Indenture and such Notes and Note Guarantees will be unaffected thereby. In addition, upon the Companys exercise under Section 7.01 hereof of the option applicable to this Section 7.03, subject to the satisfaction of the conditions set forth in Section 7.04 hereof, Sections 6.01 (3), (4), (5), (6), (7) and (8) hereof will not constitute Events of Default.
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Section 7.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 7.02 or 7.03 hereof:
(1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, to pay the principal of, premium on, if any, and interest on, the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to such stated date for payment or to a particular redemption date;
(2) in the case of Legal Defeasance, the Company must deliver to the Trustee an Opinion of Counsel confirming that:
(A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or
(B) since the date of this Supplemental Indenture, there has been a change in the applicable federal income tax law (or official interpretation thereof),
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company must deliver to the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness), and the granting of Liens to secure such borrowings);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Indenture and the agreements governing any other Indebtedness being defeased, discharged or replaced) to which the Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is bound (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit (and any similar concurrent deposit relating to other Indebtedness) and the granting of Liens to secure such borrowings);
(6) the Company must deliver to the Trustee an Officers Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and
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(7) the Company must deliver to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 7.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 7.06, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 7.05, the Trustee) pursuant to Section 7.04 in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and the Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 7.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Notwithstanding anything in this Article 7 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 7.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 7.04(1)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 7.06 Repayment to Company.
Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of or interest on the Notes and not applied but remaining unclaimed by the Holders of the Notes for two years after the date upon which the principal of or interest on such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand, and all liability of the Trustee shall thereupon cease with respect to such monies; and the Holder of any of the Notes shall thereafter look only to the Company for any payment or delivery that such Holder of the Notes may be entitled to collect unless an applicable abandoned property law designates another person.
Section 7.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 7.02 or 7.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Companys and the Guarantors obligations under the Indenture and the Notes and the Note Guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 7.02 or 7.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 7.02 or 7.03, as the case may be; provided, however, that, if the Company makes any payment of principal of, premium on, if any, or interest on, any Note following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE 8.
SATISFACTION AND DISCHARGE
Section 8.01 Satisfaction and Discharge of the Supplemental Indenture.
Articles VIII and XI of the Original Indenture shall not apply to the Notes. Instead, the satisfaction and discharge provisions set forth in this Article 8 shall, with respect to the Notes, supersede in their entirety Articles VIII and XI of the Original Indenture, and all references in the Original Indenture to Articles VIII and XI thereof and satisfaction and discharge provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 9 and the satisfaction and discharge provisions set forth in this Article 8, respectively.
The Indenture will be discharged with respect to the Notes and will cease to be of further effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise or will become due and payable within one year or are to be called for redemption within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in amounts as will be sufficient, in the opinion of a nationally recognized investment bank, appraisal firm or firm of independent public accountants, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not delivered to the Trustee for cancellation for principal of, premium on, if any, and interest on, the Notes to the date of maturity or redemption;
(2) in respect of clause 1(b), no Default or Event of Default has occurred and is continuing on the date of the deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit and any similar deposit relating to other Indebtedness and, in each case, the granting of Liens to secure such borrowings) and the deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound (other than with respect to the borrowing of funds to be applied concurrently to make the deposit required to effect such satisfaction and discharge and any similar concurrent deposit relating to other Indebtedness, and in each case the granting of Liens to secure such borrowings);
(3) the Company or any Guarantor has paid or caused to be paid all sums payable by it under the Indenture with respect to the Notes; and
(4) the Company has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be.
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In addition, the Company must deliver an Officers Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of the Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section 8.01, the provisions of Sections 8.02 and 7.06 will survive. In addition, nothing in this Section 8.01 will be deemed to discharge those provisions of Section 7.7 of the Original Indenture, that, by their terms, survive the satisfaction and discharge of the Indenture.
Section 8.02 Application of Trust Money.
Subject to the provisions of Section 7.06, all money deposited with the Trustee pursuant to Section 8.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and the Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Companys and any Guarantors obligations under the Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01; provided that if the Company has made any payment of principal of, premium on, if any, or interest, on, any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 9.
NOTE GUARANTEES
Section 9.01 Guarantee.
Subject to this Article 9, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium on, if any, and interest, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest, on, the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
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Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of such Guarantors Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of such Guarantors Note Guarantee. The Guarantors will have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Section 9.02 [RESERVED].
Section 9.03 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 9, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance. Each Guarantor that makes a payment under its Note Guarantee will be entitled upon payment in full of all Guaranteed Obligations under the Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantors pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment, determined in accordance with GAAP.
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Section 9.04 Execution and Delivery.
To evidence its Note Guarantee set forth in Section 9.01, each Guarantor hereby agrees that this Supplemental Indenture will be executed on behalf of such Guarantor by one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section 9.01 will remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
If an Officer whose signature is on this Supplemental Indenture no longer holds that office at the time the Trustee authenticates the Notes, the Note Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Supplemental Indenture on behalf of the Guarantors.
In the event that the Company or any of its Subsidiaries creates or acquires any Domestic Subsidiary after the date of this Supplemental Indenture, if required by Section 4.10, the Company will cause such Domestic Subsidiary to comply with the provisions of Section 4.10 and this Article 9, to the extent applicable.
Section 9.05 Guarantors May Consolidate, etc., on Certain Terms.
No Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, unless, immediately after giving effect to such transaction, no Default or Event of Default exists.
Except as set forth in Articles 4 and 5, any Guarantor may (i) merge into or transfer all or part of its properties and assets to another Guarantor or the Company, (ii) merge with an Affiliate of the Company solely for the purpose of reincorporating or reorganizing the Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Company and its Subsidiaries is not increased thereby or (iii) convert into a Person organized or existing under the laws of a jurisdiction in the United States.
Section 9.06 Releases.
(a) The Note Guarantee of a Guarantor will be automatically and unconditionally released and discharged:
(1) in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor, by way of merger, consolidation or otherwise, to a Person that is not (either before or after giving effect to such transaction) the Company;
(2) in connection with any sale or other disposition of Capital Stock of that Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company, if the Guarantor ceases to be a Subsidiary of the Company as a result of the sale or other disposition;
(3) with respect to any Guarantor that, as of the date of this Supplemental Indenture, is a guarantor or other obligor with respect to any Indebtedness under any Credit Facility, if that Guarantor ceases to be a guarantor or other obligor with respect to any such Indebtedness; provided,
41
however, that if, at any time following such release, that Guarantor subsequently guarantees or otherwise becomes an obligor with respect to any Indebtedness under a Credit Facility, then that Guarantor will be required to provide a Note Guarantee in accordance with Section 4.10;
(4) with respect to any Guarantor that, as of the date of this Supplemental Indenture, is not a guarantor or other obligor with respect to any Indebtedness under any Credit Facility, in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor, by way of merger, consolidation or otherwise, in accordance with this Supplemental Indenture to any Subsidiary that is not a Guarantor;
(5) upon legal defeasance, covenant defeasance or satisfaction and discharge of the Indenture as provided in Article 7 and Article 8; or
(6) on the Fall Away Date.
(b) Any release and discharge pursuant to Section 9.06(a) shall occur automatically upon the consummation of any such transaction without any further action required of the Company, the applicable Guarantor or the Trustee; provided that the Trustee shall be entitled to an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Indenture relating to such transaction have been complied with.
(c) If on any date following the date of this Supplemental Indenture:
(1)the Notes are rated Investment Grade by both Rating Agencies; and
(2)no Default or Event of Default shall have occurred and be continuing,
then, beginning on that day (the Fall Away Date) and continuing at all times thereafter regardless of any subsequent changes in the rating of the Notes, the Note Guarantees of each of the Guarantors will be automatically released and Section 4.10 shall cease to apply to the Notes.
ARTICLE 10.
SUPPLEMENTAL INDENTURES
Section 10.01 Supplemental Indentures Without Consent of Holders. In lieu of Section 9.1 of the Original Indenture, the Company, the Guarantors and the Trustee may amend or supplement the Indenture, the Notes or the Note Guarantees without notice to or the consent of any Holder of the Notes:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of Physical Notes;
(c) to provide for the assumption of the Companys obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of the Companys assets;
(d) to make any change that would provide any additional rights or benefits to the holders of Notes or that does not adversely affect the legal rights under the Indenture of any Holder;
(e) to comply with requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA;
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(f) to conform this Supplemental Indenture, the Notes and the Note Guarantees and the form or terms of the Notes to the Description of Notes section as set forth in the final prospectus supplement related to the offering and sale of the Notes dated November 16, 2017 to the extent that such description was intended to be a verbatim recitation of a provision in the Indenture, the Notes or the Note Guarantees, which intent will be evidenced by an Officers Certificate provided to the Trustee to that effect;
(g) to provide for the issuance of Additional Notes in accordance with the limitations set forth in the Indenture as of the date of this Supplemental Indenture;
(h) to release a Guarantor from its Note Guarantee pursuant to the terms of the Indenture when permitted or required pursuant to the terms of the Indenture;
(i) to secure the Notes and the related Note Guarantees or add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or any Guarantor;
(j) to add additional Note Guarantees;
(k) to evidence and provide for the acceptance and appointment under the Indenture of a successor Trustee pursuant to the requirements hereof; or
(l) to make any amendment to the provisions of the Indenture relating to the transfer or legending of the Notes; provided, however, that (i) compliance with this Supplemental Indenture as so amended would not result in notes being transferred in violation of the Securities Act, or any applicable securities law and (ii) such amendment does not materially and adversely affect the rights of Holders to transfer Notes.
The consent of the Holders is not necessary to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
Section 10.02 Supplemental Indentures With Consent of Holders.
Subject to Section 10.01, the Indenture, the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, or interest, on, the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes (including, without limitation, Additional Notes, if any) voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). In lieu of Section 9.2 of the Original Indenture, which shall not apply with respect to the Notes, without the consent of each Holder affected thereby, no amendment, supplement or waiver, including a waiver in relation to a past Event of Default, may:
(a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption of the Notes (for the avoidance of doubt, the provisions with respect to the redemption of the Notes referred to in this clause (b) do not include the offers to purchase Notes described in Section 4.08);
43
(c) reduce the rate of or change the time for payment of interest on any Note;
(d) waive a Default or Event of Default in the payment of principal of, premium on, if any, or interest, on, the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of the Indenture relating to waivers of past Defaults;
(g) amend the contractual right expressly set forth in the Indenture or Notes of Holders to receive payments of principal of, premium on, if any, or interest, on, the Notes on or after the due dates therefor or to institute suit to enforce such payment;
(h) waive a redemption payment with respect to any Note (other than a payment required by Section 4.08);
(i) prior to the Fall Away Date, release any Guarantor that is a Significant Subsidiary (or any group of Guarantors that, taken together, as of the latest audited consolidated financial statements for the Company would constitute a Significant Subsidiary) from any of its obligations under its Note Guarantee or the Indenture, except in accordance with the terms of the Indenture; or
(j) make any change in the preceding amendment and waiver provisions.
The consent of the Holders is not necessary under the Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment.
Section 10.03 Notice of Amendment or Supplement. After an amendment or supplement under this Article 10 or Article IX of the Original Indenture becomes effective, the Company shall deliver to the Holders a notice briefly describing such amendment or supplement. However, the failure to give such notice to all the Holders, or any defect in the notice, shall not impair or affect the validity of the amendment or supplement.
ARTICLE 11.
MISCELLANEOUS
Section 11.01 Governing Law. THIS SUPPLEMENTAL INDENTURE, EACH OF THE NOTES, EACH OF THE NOTE GUARANTEES AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, EACH OF THE NOTES AND EACH OF THE NOTE GUARANTEES, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 11.02 No Security Interest Created. Nothing in this Supplemental Indenture, in the Notes or in the Note Guarantees expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
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Section 11.03 Trust Indenture Act. This Supplemental Indenture will be subject to, and governed by, the provisions of the TIA that are required to be part of this Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
Section 11.04 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, in the Notes or the Note Guarantees, express or implied, shall give to any person (including any Registrar, any Paying Agent and their successors hereunder), other than the parties hereto, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 11.05 Calculations. Except as otherwise provided in this Supplemental Indenture, the Company shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, determinations of accrued interest payable on the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Companys calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its calculations to the Trustee and the Trustee is entitled to rely conclusively upon the accuracy of the Companys calculations without independent verification. The Trustee will forward the Companys calculations to any Holder of Notes upon the request of that Holder at the sole cost and expense of the Company.
Section 11.06 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 11.07 Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 11.08 Separability Clause. In case any provision in this Supplemental Indenture, in any Note or coupon or in any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.09 Ratification of Original Indenture. The Original Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Original Indenture in the manner and to the extent herein and therein provided. For the avoidance of doubt, each of the Company, each of the Guarantors and each Holder of the Notes, by its acceptance of such Notes, acknowledges and agrees that all of the rights, privileges, protections, immunities, indemnities and benefits afforded to the Trustee under the Original Indenture are deemed to be incorporated herein, and shall be enforceable by the Trustee hereunder, in each of its capacities hereunder as if set forth herein in full.
Section 11.10 The Trustee. The recitals in this Supplemental Indenture are made by the Company and the Guarantors only and not the Trustee, and all of the provisions contained in the Original Indenture in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the Notes, the Note Guarantees and of this Supplemental Indenture as fully and with like effect as set forth in full herein.
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Section 11.11 No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
[Remainder of the page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed as of the day and year first above written.
TELEFLEX INCORPORATED | ||
By: | /s/ Jake Elguicze | |
Name: Jake Elguicze | ||
Title: Treasurer and Vice President, Investor Relations |
AIRFOIL TECHNOLOGIES INTERNATIONAL-OHIO, INC. |
ARROW INTERNATIONAL, INC. |
ARROW INTERNATIONAL INVESTMENT CORP. |
ARROW INTERVENTIONAL, INC. |
HOTSPUR TECHNOLOGIES, INC. |
NEOTRACT, INC. |
TECHNOLOGY HOLDING COMPANY II |
TECHNOLOGY HOLDING COMPANY III |
TELEFLEX MEDICAL INCORPORATED |
TELEFLEX UROLOGY LIMITED |
TFX EQUITIES INCORPORATED |
TFX INTERNATIONAL CORPORATION |
TFX NORTH AMERICA INC. |
TFX MEDICAL WIRE PRODUCTS, INC. |
VASCULAR SOLUTIONS LLC |
VASONOVA, INC. |
VIDACARE, LLC |
WOLFE-TORY MEDICAL, INC. |
By: | /s/ Jake Elguicze | |
Name: Jake Elguicze | ||
Title: (1) President (in the case of Airfoil Technologies International-Ohio, Inc., Arrow International Investment Corp., Technology Holding Company II and Technology Holding Company III, (2) Vice President & Treasurer (in the case of Arrow International, Inc., Arrow Interventional, Inc., Hotspur Technologies, Inc., NeoTract, Inc., Teleflex Medical Incorporated, TFX Medical Wire Products, Inc., Vascular Solutions LLC, VasoNova, Inc., Vidcare LLC and Wolfe-Tory Medical, Inc.) and (3) Director (in the case of Teleflex Urology Group Limited) |
2
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
By: | /s/ Matthew Howald | |
Name: Matthew Howald | ||
Title: Vice President |
SCHEDULE A
GUARANTORS
Entity |
Jurisdiction of Formation | |
Airfoil Technologies International-Ohio, Inc. | DE | |
Arrow International, Inc. | PA | |
Arrow International Investment Corp. | DE | |
Arrow Interventional, Inc. | DE | |
Hotspur Technologies, Inc. | DE | |
NeoTract, Inc. | DE | |
Technology Holding Company II | DE | |
Technology Holding Company III | DE | |
Teleflex Medical Incorporated | CA | |
Teleflex Urology Limited | Ireland | |
TFX Equities Incorporated | DE | |
TFX International Corporation | DE | |
TFX Medical Wire Products, Inc. | DE | |
TFX North America Inc. | DE | |
Vascular Solutions LLC | MN | |
VasoNova, Inc. | DE | |
Vidacare LLC | DE | |
Wolfe-Tory Medical, Inc. | UT |
EXHIBIT A
[Face of Note]
[THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. ]*
* | This legend should be included only if the Note is issued as a Global Note. |
A-1
CUSIP/CINS 879369 AF3 / US879369AF39
4.625% Senior Notes due 2027
No. | $ * |
TELEFLEX INCORPORATED
promises to pay to or registered assigns,
the principal sum of DOLLARS [(or such lesser principal amount as shall be reflected in the books and records of the Trustee and Depository)] on November 15, 2027.
Interest Payment Dates: May 15 and November 15
Regular Record Dates: May 1 and November 1
Dated: , 2017
IN WITNESS WHEREOF, TELEFLEX INCORPORATED has caused this instrument to be signed manually or by facsimile by two of its duly authorized Officers.
Date: , 2017
TELEFLEX INCORPORATED | ||
By: |
| |
Name: | ||
Title: | ||
By: |
| |
Name: | ||
Title: |
This is one of the Notes referred to in the within-mentioned Indenture:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: |
| |
Authorized Signatory | ||
|
A-2
[Back of Note]
4.625% Senior Notes due 2027
Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. Teleflex Incorporated, a Delaware corporation (the Company), promises to pay or cause to be paid interest on the principal amount of this Note at 4.625% per annum from , until, but excluding, maturity. The Company will pay interest, if any, semi-annually in arrears on May 15 and November 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date); provided, that the first Interest Payment Date will be May 15, 2018. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that, if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be , . The Company will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the otherwise applicable interest rate on the Notes to the extent lawful; it will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period), at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date, the maturity date, any redemption date, or any earlier required repurchase date of a note falls on a day that is not a business day, the required payment will be made on the next succeeding business day and no interest on such payment will accrue in respect of the delay.
(2) METHOD OF PAYMENT. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at 5:00 p.m., New York City time, on the May 1 or November 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Original Indenture with respect to defaulted interest. The Company shall pay the principal of and interest on any Global Note in immediately available funds to the Depository or its nominee, as the case may be, as the registered Holder of such Global Note. The Company, through the Paying Agent, shall make all payments of principal, premium, if any, and interest, with respect to Physical Notes by wire transfer of immediately available funds to the accounts specified by the Holders of the Physical Notes or, if no such account is specified, by mailing a check to each such Holders registered address. Such payment will be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change the Paying Agent or Registrar without prior notice to the Holders of the Notes. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
(4) INDENTURE. The Company issued the Notes under a base indenture dated May 16, 2016, between the Company and the Trustee (the Original Indenture), as supplemented by the Fourth Supplemental Indenture dated as of November 20, 2017 (the Fourth Supplemental Indenture and the Original Indenture as supplemented by the Fourth Supplemental Indenture, the
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Indenture) among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are unsecured obligations of the Company. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.
(5) OPTIONAL REDEMPTION.
(a) At any time prior to November 15, 2020, the Company may on any one or more occasions redeem up to 40% of the aggregate principal amount of Notes issued under the Supplemental Indenture (including any Additional Notes), upon not less than 15 nor more than 60 days notice, at a redemption price equal to 104.625% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, to, but not including, the date of redemption (subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant interest payment date), with the net cash proceeds of an Equity Offering by the Company; provided that:
(A) at least 60% of the aggregate principal amount of Notes originally issued under the Supplemental Indenture (excluding Notes held by the Company and its Subsidiaries) remains outstanding immediately after the occurrence of such redemption; and
(B) the redemption occurs within 120 days of the date of the closing of such Equity Offering.
(b) At any time prior to November 15, 2022, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 15 nor more than 60 days notice, at a redemption price equal to 100% of the principal amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and unpaid interest, to, but not including, the date of redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
(c) Except pursuant to the preceding paragraphs, the Notes will not be redeemable at the Companys option prior to November 15, 2022.
(d) On or after November 15, 2022, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 15 nor more than 60 days notice, at the redemption prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, on the Notes redeemed, to, but not including, the applicable date of redemption, if redeemed during the twelve-month period beginning on November 15 of the years indicated below, subject to the rights of Holders of Notes on the relevant record date to receive interest on the relevant interest payment date:
Year |
Percentage | |||
2022 |
102.313 | % | ||
2023 |
101.542 | % | ||
2024 |
100.771 | % | ||
2025 and thereafter |
100.000 | % |
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Unless the Company defaults in the payment of the redemption price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable redemption date.
(6) MANDATORY REDEMPTION; OPEN MARKET PURCHASES. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. The Company may at any time and from time to time acquire Notes by tender offer, open market purchases, negotiated transactions or otherwise.
(7) CHANGE OF CONTROL. If a Change of Control occurs and is accompanied by a Ratings Event (together, a Change of Control Triggering Event), each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holders Notes pursuant to an offer by the Company (a Change of Control Offer) on the terms set forth in the Indenture. In the Change of Control Offer, the Company will offer a payment in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest, on the Notes repurchased to, but not including, the date of purchase (the Change of Control Payment), subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date. Within thirty days following any Change of Control Triggering Event, the Company will deliver electronically in pdf format or mail a notice to each Holder with a copy to the Trustee or otherwise in accordance with the procedures of the Depositary describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed or otherwise delivered (a Change of Control Payment Date), pursuant to the procedures required by the Indenture and described in such notice. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Offer provisions of the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the Indenture by virtue of such compliance.
(8) NOTICE OF REDEMPTION. At least 15 days but not more than 60 days before a redemption date, the Company will deliver electronically in pdf format or mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant to Articles 7 or 8 of the Fourth Supplemental Indenture. Notes and portions of Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder shall be redeemed or purchased.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before the provision of a notice of redemption of Notes to be redeemed or during the period between a record date and the next succeeding Interest Payment Date.
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(10) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as the owner of it for all purposes. Only registered Holders have rights under the Indenture.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. The provisions governing amendment, supplement and waiver of any provision of the Indenture, the Notes or the Note Guarantees are set forth in Article 10 of the Fourth Supplemental Indenture.
(12) DEFAULTS AND REMEDIES. The Defaults and Event of Default relating to the Notes are set forth in Section 6.01 of the Fourth Supplemental Indenture.
(13) [RESERVED].
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
(15) NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
(16) AUTHENTICATION. This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption, and reliance may be placed only on the other identification numbers placed thereon.
(19) GOVERNING LAW. THE INDENTURE, EACH OF THE NOTES, EACH OF THE NOTE GUARANTEES AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE INDENTURE, EACH OF THE NOTES AND EACH OF THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
| |
(Insert assignees legal name) |
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
Your Signature: |
| |
(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*: |
|
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 of the Fourth Supplemental Indenture, check the box below:
☐ Section 4.08
If you want to elect to have only part of the Note purchased by the Company pursuant to Section Section 4.08 of the Indenture, state the amount you elect to have purchased:
$_______________
Date: _______________
Your Signature: |
| |
(Sign exactly as your name appears on the face of this Note) |
Tax Identification No.: |
|
Signature Guarantee*: |
|
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
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EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of , among (the Guaranteeing Subsidiary), a subsidiary of Teleflex Incorporated (or its permitted successor), a Delaware corporation (the Company), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wells Fargo Bank, National Association, as trustee under the Indenture referred to below (the Trustee).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the Original Indenture), dated as of May 16, 2016 and a Fourth Supplemental Indenture, dated as of November 20, 2017 (the Fourth Supplemental Indenture and, together with the Original Indenture, the Indenture) providing for the issuance of 4.625% Senior Notes due 2027 (the Notes);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Companys Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Note Guarantee); and
WHEREAS, pursuant to Section 10.01 of the Fourth Supplemental Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Fourth Supplemental Indenture including but not limited to Article 9 thereof.
4. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
5. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
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7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: _______________,
[GUARANTEEING SUBSIDIARY] | ||
By: |
| |
Name: | ||
Title: | ||
TELEFLEX INCORPORATED | ||
By: |
| |
Name: | ||
Title: | ||
[EXISTING GUARANTORS] | ||
By: |
| |
Name: | ||
Title: | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: |
| |
Authorized Signatory |
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Exhibit 5.1
November 20, 2017
Teleflex Incorporated
550 East Swedesford Road
Suite 400
Wayne, PA 19087
Ladies and Gentlemen:
We have acted as counsel to Teleflex Incorporated, a Delaware corporation (the Company), and the Guarantors listed on Schedule I hereto (the Guarantors) in connection with the Registration Statement on Form S-3 (File No. 333-211276) as amended by Post-Effective Amendment No.1 thereto (the Registration Statement) filed by the Company and the Guarantors with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, relating to the issuance by the Company of $500,000,000 aggregate principal amount of 4.625% Senior Notes due 2027 (the Notes) and the issuance by the Guarantors of guarantees (the Guarantees) with respect to the Notes pursuant to the Underwriting Agreement, dated November 16, 2017, among the Company, the Guarantors and the several underwriters named therein (the Underwriting Agreement). The Notes and the Guarantees will be issued under the Indenture, dated May 16, 2016, between the Company and Wells Fargo Bank, National Association, as Trustee (the Trustee) (the Base Indenture), as supplemented by the Fourth Supplemental Indenture relating to the Notes and the Guarantees, dated November 20, 2017, among the Company, the Guarantors and the Trustee (the Fourth Supplemental Indenture and, together with the Base Indenture, the Indenture).
We have examined the Registration Statement, the Base Indenture, which has been filed with the Commission as an exhibit to the Registration Statement, the Fourth Supplemental Indenture, which is being filed concurrently with the Commission as an exhibit to the Companys Current Report on Form 8-K filed on November 20, 2017, duplicates of the global note representing the Notes, the Guarantees (whose terms are set forth in the Indenture) and the Underwriting Agreement. We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors.
In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents. We also have assumed that: (1) the Indenture is the valid and legally binding obligation of the Trustee; (2) each of Arrow International, Inc., a Pennsylvania corporation (the Pennsylvania Guarantor), Wolfe-Tory Medical, Inc., a Utah corporation (the Utah Guarantor), Vascular Solutions LLC, a Minnesota limited liability company (the Minnesota Guarantor) and Teleflex Urology Limited, a private limited company incorporated under the laws of Ireland (the Ireland Guarantor) is validly existing and in good standing under the law of the jurisdiction in which it is organized and has duly authorized, executed, issued and delivered the Indenture (including the Guarantees therein) in accordance with its organizational documents and the laws of the jurisdiction in which it is organized; (3) the execution, delivery, issuance and performance by each of the Pennsylvania Guarantor, the Utah Guarantor, the Minnesota Guarantor and the Ireland Guarantor of the Indenture (including the Guarantees therein) will not violate the law of
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the jurisdiction in which it is organized or any other jurisdiction (except no such assumption is made with respect to federal law of the United States or the law of the State of New York); and (4) the execution, delivery, issuance and performance by each of the Pennsylvania Guarantor, the Utah Guarantor, the Minnesota Guarantor and the Ireland Guarantor of the Indenture (including the Guarantees therein) does not constitute a breach or default under any agreement or instrument which is binding upon the Company or any such Guarantor.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
1. The Notes have been duly authorized, executed, issued and delivered by the Company, and upon payment and delivery in accordance with the Underwriting Agreement and otherwise in accordance with the provisions of the Indenture, the Notes will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
2. The Guarantees have been duly authorized and issued by the Schedule I Guarantors, assuming due authentication of the Notes by the Trustee and upon payment for and delivery of the Notes in accordance with the Underwriting Agreement, the Guarantees will constitute valid and legally binding obligations of the Guarantors enforceable against the Guarantors in accordance with their terms and entitled to the benefits of the Indenture.
Our opinions set forth above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
We do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States, the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing), the Delaware Limited Liability Company Act and the General Corporation Law of the State of California (California General Corporation
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Law). We understand that, with respect to all matters of law other than the State of New York, the federal law of the United States, the Delaware General Corporation Law, the Delaware Limited Liability Company Act and the California General Corporation Law, you are relying on the opinions of A&L Goodbody, Dorsey & Whitney LLP, Ballard Spahr LLP and James J. Leyden, Vice President, General Counsel and Secretary of the Company, in each case dated the date hereof and filed as Exhibits 5.5, 5.4, 5.3 and 5.2, respectively, to the Current Report on Form 8-K of the Company filed with the Commission in connection with the closing of the offering of the Notes.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Companys Current Report on Form 8-K dated November 20, 2017 and to the use of our name under the caption Legal matters included in the prospectus included in the Registration Statement, as supplemented by the prospectus supplement dated November 16, 2017.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
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SCHEDULE I
GUARANTORS
Entity |
Jurisdiction of | |
Airfoil Technologies International-Ohio, Inc. | DE | |
Arrow International Investment Corp. | DE | |
Arrow Interventional, Inc. | DE | |
Hotspur Technologies, Inc. | DE | |
NeoTract, Inc. | DE | |
Technology Holding Company II | DE | |
Technology Holding Company III | DE | |
Teleflex Medical Incorporated | CA | |
Teleflex Urology Limited | Ireland | |
TFX Equities Incorporated | DE | |
TFX International Corporation | DE | |
TFX Medical Wire Products, Inc. | DE | |
TFX North America Inc. | DE | |
Vascular Solutions LLC | MN | |
VasoNova, Inc. | DE | |
Vidacare LLC | DE | |
Arrow International, Inc. | PA | |
Wolfe-Tory Medical, Inc. | UT |
Exhibit 5.2
November 20, 2017
Teleflex Incorporated
550 East Swedesford Road, Suite 400
Wayne, Pennsylvania 19087
Ladies and Gentlemen:
I am Vice President, General Counsel and Secretary of Teleflex Incorporated, a Delaware corporation (the Company). This opinion letter is rendered in connection with the Registration Statement on Form S-3 as amended by Post-Effective Amendment No. 1 thereto (the Registration Statement) filed by the Company and the subsidiaries of the Company listed on Schedule I hereto (the Non-Pennsylvania Guarantors) and Schedule II hereto (the Pennsylvania Guarantor, and together with the Non-Pennsylvania Guarantors, the Guarantors) with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, relating to the guarantees of the Guarantors (the Guarantees) to be issued in connection with the issuance of $500,000,000 aggregate principal amount of 4.625% Senior Notes due 2027 (the Securities) pursuant to the Underwriting Agreement, dated November 16, 2017, among the Company, the Guarantors and the several underwriters named therein (the Underwriting Agreement).
The Securities and the Guarantees will be issued under the Indenture, dated May 16, 2016 (the Base Indenture), between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by the Fourth Supplemental Indenture relating to the Securities and the Guarantees, dated November 20, 2017, among the Company, the Guarantors and the Trustee (the Fourth Supplemental Indenture, and together with the Base Indenture, the Indenture).
I, and lawyers under my supervision as well as our outside counsel Simpson Thacher & Bartlett LLP, have examined the Registration Statement, the Base Indenture, which has been filed with the Commission as an exhibit to the Registration Statement, the Fourth Supplemental Indenture, which is being filed concurrently with the Commission as an exhibit to the Companys Current Report on Form 8-K filed on November 20, 2017, duplicates of the global notes representing the Securities and the Guarantees and the Underwriting Agreement. In addition, I, and lawyers under my supervision, have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and have made such other investigations as I have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, I have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors.
In rendering the opinions set forth below, except with respect to documents executed by officers of the Company in my presence, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. I also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.
Based upon the foregoing and subject to the qualifications, assumptions and limitations stated herein, I am of the opinion that:
1. The Pennsylvania Guarantor is validly existing and in good standing as a corporation under the law of the Commonwealth of Pennsylvania.
2. The Indenture (including the Guarantee set forth therein) has been duly authorized, executed and delivered by the Pennsylvania Guarantor.
3. The execution, delivery and performance by the Pennsylvania Guarantor of the Indenture (including the Guarantee set forth therein) does not violate the certificate of incorporation or by-laws of the Pennsylvania Guarantor or the law of the Commonwealth of Pennsylvania.
I do not express any opinion herein concerning any law other than the law of the Commonwealth of Pennsylvania and the federal law of the United States.
I hereby consent to the filing of this opinion letter as Exhibit 5.2 to the Companys Current Report on Form 8-K filed on November 20, 2017 and to the use of my name under the caption Legal matters in the prospectus included in the Registration Statement, as supplemented by the prospectus supplement dated November 16, 2017.
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Very truly yours, | ||
By: | /s/ James J. Leyden | |
Name: James J. Leyden | ||
Title: Vice President, General Counsel and Secretary |
[Signature Page to General Counsel Exhibit 5 Opinion]
SCHEDULE I
NON-PENNSYLVANIA GUARANTORS
Entity |
Jurisdiction of Formation | |
Airfoil Technologies International-Ohio, Inc. | DE | |
Arrow International Investment Corp. | DE | |
Arrow Interventional Inc. | DE | |
Hotspur Technologies, Inc. | DE | |
NeoTract, Inc. | DE | |
Technology Holding Company II | DE | |
Technology Holding Company III | DE | |
Teleflex Urology Limited | Ireland | |
TFX Equities Incorporated | DE | |
TFX International Corporation | DE | |
TFX Medical Wire Products, Inc. | DE | |
TFX North America Inc. | DE | |
Vascular Solutions LLC | MN | |
VasoNova, Inc. | DE | |
Vidacare LLC | DE | |
Teleflex Medical Incorporated | CA | |
Wolfe-Tory Medical, Inc. | UT |
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SCHEDULE II
PENNSYLVANIA GUARANTOR
Entity |
Jurisdiction of | |
Arrow International, Inc. | PA |
S-2
Exhibit 5.3
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November 20, 2017
Teleflex Incorporated
550 E. Swedesford Road
Suite 400
Wayne, PA 19087
Re: | Senior Note Offering |
Ladies and Gentlemen:
We are issuing this opinion letter in our capacity as Utah counsel to Wolfe-Tory Medical, Inc., a Utah corporation (the Company), in connection with the Companys proposed guarantee, along with certain other guarantors under the Indenture (as defined below), of $500,000,000 in aggregate principal amount of 4.625% Senior Notes due 2027 (the Notes). The Notes are to be issued by Teleflex Incorporated, a Delaware corporation (the Issuer), in connection with a public offering described in the prospectus supplement dated November 16, 2017 (the Prospectus Supplement) to a Registration Statement on Form S-3, as amended by Post-Effective No. 1 thereto (File No. 333-211276) (such Registration Statement, as supplemented or amended, is hereinafter referred to as the Registration Statement), filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act). The obligations of the Issuer under the Notes will be guaranteed by the Company and certain other guarantors (the Guarantees). The Notes and the Guarantees are to be issued pursuant to the Indenture, dated as of May 16, 2016 (the Base Indenture), among the Issuer and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by the Fourth Supplemental Indenture, dated as of November 20, 2017, among the Issuer, the guarantors named therein and the Trustee (together with the Base Indenture, the Indenture).
In our capacity as Utah counsel, we have examined copies of executed originals or of counterparts of the following documents, each dated the date hereof, unless otherwise noted:
(a) the Prospectus Supplement;
(b) the Registration Statement;
(c) the Indenture (including the Guarantee set forth therein);
(d) the Companys Amended and Restated Articles of Incorporation and Amended and Restated Bylaws (collectively, the Charter Documents);
Teleflex Incorporated
November 20, 2017
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(e) a copy of the Certificate of Existence issued by the Utah Department of Commerce, Division of Corporations and Commercial Code, dated November 17, 2017 (the Subsistence Certificate); and
(f) the resolutions of the board of directors of the Company with respect to the filing of the Registration Statement and the issuance of the Companys Guarantee.
The opinion given in paragraph 1 below is based solely upon the Subsistence Certificate.
We have reviewed such other documents and made such examinations of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials, and, as to matters of fact material to our opinion also without independent verification, on representations made in the Indenture and certificates and other inquiries of officers of the Company.
We have assumed the legal capacity and competence of natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of documents submitted to us as certified, conformed, photostatic, electronic or facsimile copies, and the completeness of all documents reviewed by us.
Based upon the foregoing and subject to the assumptions, exceptions, limitations and qualifications set forth herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good standing under the law of the State of Utah.
2. The Indenture (including the Guarantee set forth therein) has been duly authorized, executed and delivered by the Company.
3. The execution, delivery and performance by the Company of the Indenture (including the Guarantee set forth therein) does not violate the Charter Documents or the laws of the State of Utah, which in our experience is normally applicable both to entities that are not engaged in regulated businesses and to transactions of the type contemplated by the Indenture (including the Guarantee set forth therein).
We express no opinion as to the law of any jurisdiction other than the State of Utah.
This opinion is limited to the matters expressly stated herein. No implied opinion may be inferred to extend this opinion beyond the matters expressly stated herein. We do not undertake to advise you or anyone else of any changes in the opinions expressed herein resulting from changes in law, changes in facts or any other matters that hereafter might occur or be brought to our attention.
Teleflex Incorporated
November 20, 2017
Page 3
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.3 to the Form 8-K to be filed in connection with the offering of the Notes. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours,
/s/ Ballard Spahr LLP
Exhibit 5.4
November 20, 2017
Vascular Solutions LLC
6464 Sycamore Court North
Minneapolis, MN 55369
Re: | Registration Statement on Form S-3 (File No. 333-211276) |
Ladies and Gentlemen:
We have acted as special local counsel to Vascular Solutions LLC, a Minnesota limited liability company (the Company), in connection with the Companys proposed guarantee (the Guarantee), along with certain other guarantors under the Indenture (as defined below) of $500,000,000 in aggregate principal amount of 4.625% Senior Notes due 2027 (the Notes). The Notes are to be issued by Teleflex Incorporated, a Delaware corporation (the Issuer), in connection with a public offering described in the prospectus supplement dated November 16, 2017 (the Prospectus Supplement) to a Registration Statement on Form S-3 (File No. 333-211276) (such Registration Statement, as supplemented or amended, is hereinafter referred to as the Registration Statement), filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act). The obligations of the Issuer under the Notes will be guaranteed by the Company and certain other guarantors pursuant to the Guarantee and one or more other guarantees (collectively, the Subsidiary Guarantees). The Notes and the Subsidiary Guarantees are to be issued pursuant to the Indenture, dated as of May 16, 2016 (the Base Indenture), among the Issuer and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by the First Supplemental Indenture, dated as of May 16, 2016, among the Issuer, the guarantors named therein and the Trustee and the Fourth Supplemental Indenture, dated as of November 20, 2017, among the Issuer, the guarantors named therein and the Trustee (together with the Base Indenture, the Indenture).
In connection with this opinion, we have examined the following documents:
(i) | the Prospectus Supplement; |
(ii) | the Registration Statement; |
(iii) | the Indenture; |
(iv) | the Guarantee (together with the Indenture, the Transaction Documents); |
(v) | a certified copy of the articles of organization of the Company from the Minnesota Secretary of State issued November 17, 2017, and a copy of the Limited Liability Company Agreement of the Company certified as of November 17, 2017 as a true copy by the Secretary of the Company (collectively, the Constitutive Documents); |
(vi) | a certificate of good standing concerning the Company from the Minnesota Secretary of State issued November 17, 2017 (the Good Standing Certificate); and |
Vascular Solutions LLC
November 20, 2017
Page 2
(vii) | a certificate of an officer of the Company certifying as to a copy of resolutions of the Board of Directors of the Company adopted October 19, 2017, incumbency with respect to officers of the Company, and certain other matters. |
We have examined such documents and have reviewed such questions of law as we have considered necessary or appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements and instruments, that such agreements and instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements and instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates or comparable documents of officers and other representatives of the Company and of public officials.
Based on the foregoing, we are of the opinion that:
1. | Based solely on the Good Standing Certificate, the Company is a limited liability company validly existing and in good standing under the laws of the State of Minnesota. |
2. | The Indenture and the Guarantee to be issued by the Company have been duly authorized by all necessary limited liability company action on the part of the Company. |
3. | The execution and delivery by the Company of the Indenture and the guaranteeing of obligations under the Guarantee by the Company will not violate or cause a breach of (a) any statute of the State of Minnesota or any rule or regulation of any governmental authority or regulatory body of the State of Minnesota or (b) any provision of the Constitutive Documents. |
Our opinions set forth above are subject to the following qualifications and exceptions:
(a) | Our opinions expressed above are limited to the laws of the State of Minnesota. We assume no responsibility as to the applicability to this transaction, or the effect thereon, of the laws of any other jurisdiction. |
(b) | We express no opinion concerning the Companys rights in or title to, or the creation, perfection or priority of any security interest, pledge, lien, mortgage or other similar interest in, any real or personal property. |
(c) | Our opinion in Paragraph 3 is limited to laws and regulations normally applicable to transactions of the type contemplated in the Transaction Documents and do not extend to licenses, permits and approvals necessary for the conduct of the Companys business and we express no opinion with respect to any regulated business activities or properties of the Company. In addition and without limiting the previous sentence, we express no opinion herein with respect to the effect of |
Vascular Solutions LLC
November 20, 2017
Page 3
any state or federal securities or commodities laws, land use, safety, hazardous material, environmental or similar law, or any local or regional law. In rendering such opinions, we have not conducted any independent investigation of the Company or consulted with other attorneys in our firm with respect to the matters covered thereby. No inference as to our knowledge with respect to the factual matters upon which we have so qualified our opinions should be drawn from the fact of our representation of the Company. |
(d) | We express no opinion as to compliance or the effect of noncompliance by the Trustee with any state or federal laws or regulations applicable to the Trustee in connection with the transactions described in the Transaction Documents. |
(e) | We express no opinion with respect to any document which is referenced in or incorporated by reference in any of the Transaction Documents, but is not itself a Transaction Document. |
(f) | Our opinions set forth above are subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law relating to or affecting creditors rights generally (including, without limitation, fraudulent conveyance laws). |
(g) | Our opinions set forth above are subject to the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. |
(h) | Our opinions set forth above are subject to the defenses available to a guarantor under applicable law. |
We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Issuer with the Commission on the date hereof, which Current Report on Form 8-K will be incorporated by reference into the Registration Statement, and to the reference to our firm under the heading Legal Matters in the Prospectus Supplement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Dorsey & Whitney LLP
PTN/JVH
Exhibit 5.5
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A&L Goodbody Solicitors International Financial Services Centre 25-28 North Wall Quay, Dublin 1 D01 H104 T +353 1 649 2000 Dx: 29 Dublin | www.algoodbody.com |
Dublin Belfast London New York San Francisco Palo Alto |
Date | | 20 November 2017
| |
Our Ref | | 01423859
| |
Your Ref | | |
Teleflex Urology Limited
IDA Business & Technology Park
Dublin Road
Garrycastle
Athlone
Co. Westmeath
Ireland
Teleflex Incorporated (the Issuer) - $500,000,000 aggregate principal amount of 4.625% Senior Notes due 2027 (the Notes)
Dear Sirs,
We have acted as legal advisors in Ireland to Teleflex Urology Limited (the Irish Company) in connection with the issue of the Notes by the Issuer, which Notes are fully and unconditionally guaranteed on a senior unsecured basis, jointly and severally by guarantors, including the Irish Company (the Transaction).
1. | We have examined PDF copies of: |
1.1. | the underwriting agreement dated November 16, 2017 relating to the Notes made between the Issuer, the guarantors party thereto (including the Irish Company) and the Underwriters (the Underwriting Agreement); |
1.2. | the registration statement on Form S-3 (File No. 333-211276), as amended by the post-effective amendment no.1 thereto, filed with the United States Securities and Exchange Commission under the Securities Act of 1933, as amended (the Registration Statement); |
1.3. | the prospectus dated November 16, 2017 (the Base Prospectus), as supplemented by the preliminary prospectus supplement dated November 16, 2017 (the Preliminary Prospectus Supplement) and the prospectus supplement dated November 16, 2017 (the Prospectus Supplement); |
1.4. | the indenture, dated as of May 16, 2016 (the Base Indenture), among the Issuer and Wells Fargo Bank, National Association, as trustee (the Trustee), as supplemented by the Fourth Supplemental Indenture, dated as of November 20, 2017 among the Issuer, the guarantors party thereto (including the Irish Company) and the Trustee (the Indenture and, together with the Underwriting Agreement, the Agreements); |
1.5. | a corporate certificate of the Irish Company dated 20 November 2017 (the Certificate) attaching, inter alia,: |
1.5.1. | copies of the certificate of incorporation and certificate of incorporation on change of name of the Irish Company and of the constitution of the Irish Company (the Constitution); |
PM Law CE Gill EM FitzGerald JG Grennan J Coman PD White VJ Power LA Kennedy SM Doggett B McDermott C Duffy PV Maher S ORiordan MP McKenna KA Feeney M Sherlock EP Conlon E MacNeill KP Allen EA Roberts C Rogers G OToole JN Kelly N OSullivan MJ Ward AC Burke D Widger C Christle S OCroinin JW Yarr DR Baxter A McCarthy JF Whelan JB Somerville MF Barr AM Curran A Roberts M Dale RM Moore D Main J Cahir M Traynor PM Murray N Ryan P Walker K Furlong PT Fahy M Rasdale D. Inverarity M Coghlan DR Francis A Casey B Hosty M OBrien K Killalea L Mulleady K Ryan E Hurley G Stanley D Dagostino E Keane C Clarkin R Grey R. Lyons J Sheehy C Morrissey C McLoughlin C Carroll SE Carson P Diggin J Williams A OBeirne MD Cole G Conheady J Dallas SM Lynch M McElhinney
Consultants: SW Haughey Professor JCW Wylie AF Browne MA Greene AV Fanagan JA OFarrell IB Moore
M-38005899-5
1.5.2. | a copy of the resolutions of the board of directors of the Irish Company passed at a meeting of that board of directors held on 19 October 2017; and |
1.5.3. | the names and specimen signature(s) of the person(s) authorised to execute and deliver and who have executed and delivered the Agreements on behalf of the Irish Company; |
and such other documents as we have considered necessary or desirable to examine in order that we may give this opinion.
Terms defined in Agreements have the same meaning in this opinion.
2. | For the purpose of giving this opinion we have assumed: |
2.1. | the authenticity of all documents submitted to us as originals and the completeness and conformity to the originals of all copies of documents of any kind furnished to us; |
2.2. | that the copies produced to us of minutes of meetings and/or of resolutions are true copies and correctly record the proceedings of such meetings and/or the subject-matter which they purport to record and that any meetings referred to in such copies were duly convened and held and that all resolutions set out in such minutes were duly passed and are in full force and effect; |
2.3. | the genuineness of the signatures and seals on all original and copy documents which we have examined; |
2.4. | that the copy of the Constitution attached to the Certificate is correct and up to date; |
2.5. | the current and ongoing accuracy and completeness as to factual matters of the representations, warranties and undertakings of the Irish Company contained in the Agreements and the accuracy of all certificates provided to us by the Irish Company (including the Certificate); |
2.6. | that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Transaction as disclosed by the Agreements; |
2.7. | without having made any investigation, that the terms of the Agreements are lawful and fully enforceable under the laws of the State of New York and any other applicable laws other than the laws of Ireland; |
2.8. | that the Agreements have each been executed and delivered by each of the parties thereto (other than the Irish Company) in the respective forms examined by us; |
2.9. | the due authorisation, execution and delivery of the Agreements by each of the parties thereto (other than the Irish Company) and that the performance thereof is within the capacity and power of each of the parties thereto (other than the Irish Company); |
2.10. | that no offer to the public of the Notes will be made in any member state of the European Economic Area that has implemented the Prospectus Directive (each a relevant member state) other than: |
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2.10.1. | to any legal entity which is a qualified investor as defined in the Prospectus Directive; |
2.10.2. | to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive; or |
2.10.3. | in any other circumstances falling within Article 3(2) of the Prospectus Directive. |
For the purposes of this paragraph 2.10 the expression an offer to the public in any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and the securities to be offered so as to enable an investor to decide to purchase or subscribe for the securities, as the expression may be varied in a relevant member state by any measure implementing the Prospectus Directive in that member state, and the expression Prospectus Directive means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in a relevant member state) and includes any relevant implementing measure in each relevant member state. The expression 2010 PD Amending Directive means Directive 2010/73/EU;
2.11. | that the Notes will have been duly prepared and completed in accordance with the provisions and arrangements contained or described in the Prospectus Supplement and the Indenture; |
2.12. | that each of the parties to the Agreements (other than the Irish Company) are able lawfully to enter into such agreement or deed; |
2.13. | that none of the resolutions and authorities of the directors of the Irish Company referred to in 1.4.2 above, upon which we have relied, will be varied, amended or revoked in any respect; |
2.14. | the absence of fraud on the part of the Irish Company and its respective officers, employees, agents and advisers and that the Irish Company will enter into the Transaction in good faith, for its legitimate and bona fide business purposes and that: (i) the Irish Company is or will be fully solvent at the time of and immediately following the entry into the Transaction; (ii) no resolution or petition for the appointment of a liquidator or examiner will have been passed or presented prior to the entry into the Transaction; (iii) no receiver will have been appointed in relation to any of the assets or undertaking of the Irish Company prior to the entry into the Transaction; (iv) and no composition in satisfaction of debts, scheme of arrangement, or compromise or arrangement with creditors or members (or any class of creditors or members), other than as part of a solvent reorganisation of the Irish Companys group of companies, will have been proposed, sanctioned or approved in relation to the Irish Company prior to the entry into the Transaction; |
2.15. | the accuracy and completeness of all information appearing on public records; |
2.16. | that the Irish Company will not, by its entry into the Agreements and the performance of the transactions contemplated thereby, be giving financial assistance for the purposes of Section 82 of the Companies Act 2014 of Ireland (as amended); and |
2.17. | that the Irish Company has entered into the Agreements in good faith, for its legitimate business purposes, for good consideration, and that it derives commercial benefit from the Agreements commensurate with the risks undertaken by it in the Agreements. |
3
3. | We express no opinion as to the taxation consequences of the Agreements or the Transaction and we express no opinion as to any matters falling to be determined other than under the laws of Ireland and, without reference to provisions of other laws imported by Irish private international law, in Ireland as of the date of this letter. Subject to that qualification, the assumptions set out at 2 above and the qualifications set out at 4 below, we are of the opinion that: |
3.1. | the Irish Company is duly incorporated under the laws of Ireland and is a separate legal entity, subject to suit in its own name. Based only on searches carried out in the Irish Companies Registration Office and the Central Office and Judgments Office of the High Court on 20 November 2017, the Irish Company is validly existing under the laws of Ireland and no steps have been taken or are being taken to appoint a receiver, examiner or liquidator over the Irish Company or to wind up the Irish Company; |
3.2. | the Irish Company has the necessary power and authority, and all necessary corporate and other action has been taken, to enable it to execute, deliver and perform the obligations undertaken by it under the Agreements and the implementation by the Irish Company of the foregoing will not cause: |
3.2.1. | any limit on it or on its directors (whether imposed by the documents constituting the Irish Company or by statute or regulation) to be exceeded; |
3.2.2. | a violation of the Constitution; or |
3.2.3. | any law or order to be contravened; |
3.3. | the Agreements have been duly authorised, executed and delivered on the Irish Companys behalf and the obligations of the Company as one of the guarantors of the obligations of the Issuer under the Notes have been duly authorised; |
3.4. | no authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the Agreements or the performance by the Irish Company of its obligations pursuant to the Agreements are required to be obtained in Ireland; |
3.5. | it is not necessary under the laws of Ireland that the Agreements be filed, registered, recorded or notarised in any public office in Ireland; |
3.6. | in any proceedings taken in Ireland for the enforcement of the Agreements, the choice of the laws of the State of New York as the governing law of the contractual rights and obligations of the parties under the Agreements and the submission by the parties to the Underwriting Agreement to the exclusive jurisdiction of the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York (the Specified Courts), would be upheld by the Irish courts in accordance with or subject to the provisions of the Rome 1 Regulation EC No 593/2008 on the Law Applicable to Contractual Obligations, meaning that the courts of Ireland may only refuse to apply the choice of laws of the State of New York if such application is manifestly incompatible with Irish public policy (at the date hereof, we are not aware of any circumstances concerning the choice of the laws of the State of New York that would give rise to an Irish court holding that such choice violates Irish public policy, but it should be noted that matters of public policy are subjective and evolving); and |
4
3.7. | in any proceedings taken in Ireland for the enforcement of a judgment obtained against the Irish Company in the Specified Courts (a Foreign Judgment) the Foreign Judgment would be recognised and enforced by the courts of Ireland save that to enforce such a Foreign Judgment in Ireland it would be necessary to obtain an order of the Irish courts. Such order should be granted on proper proof of the Foreign Judgment without any re-trial or examination of the merits of the case subject to the following qualifications: |
3.7.1. | that the foreign court had jurisdiction, according to the laws of Ireland; |
3.7.2. | that the Foreign Judgment was not obtained by fraud; |
3.7.3. | that the Foreign Judgment is not contrary to public policy or natural justice as understood in Irish law; |
3.7.4. | that the Foreign Judgment is final and conclusive; |
3.7.5. | that the Foreign Judgment is for a definite sum of money; and |
3.7.6. | that the procedural rules of the court giving the Foreign Judgment have been observed; |
any such order of the Irish courts may be expressed in a currency other than euro in respect of the amount due and payable by the Irish Company but such order may be issued out of the Central Office of the Irish High Court expressed in euro by reference to the official rate of exchange prevailing on the date of issue of such order. However, in the event of a winding up of the Irish Company, amounts claimed against the Irish Company in a currency other than the euro (the Foreign Currency) would, to the extent properly payable in the winding up, be paid if not in the Foreign Currency in the euro equivalent of the amount due in the Foreign Currency converted at the rate of exchange pertaining on the date of the commencement of such winding up.
4. | The opinions set forth in this opinion letter are given subject to the following qualifications: |
4.1. | an order of specific performance or any other equitable remedy is a discretionary remedy and is not available when damages are considered to be an adequate remedy; |
4.2. | this opinion is given subject to general provisions of Irish law relating to insolvency, bankruptcy, liquidation, reorganisation, receivership, moratoria, court scheme of arrangement, administration and examination, and the fraudulent preference of creditors and other Irish law generally affecting the rights of creditors; |
4.3. | this opinion is subject to the general laws relating to the limitation of actions in Ireland; |
4.4. | a determination, description, calculation, opinion or certificate of any person as to any matter provided for in the Agreements might be held by the Irish courts not to be final, conclusive or binding if it could be shown to have an unreasonable, incorrect, or arbitrary basis or not to have been made in good faith; |
4.5. | additional interest imposed by any clause of the Agreements might be held to constitute a penalty and the provisions of that clause imposing additional interest would thus be held to be void. The fact that such provisions are held to be void would not in itself prejudice the legality and enforceability of any other provisions of the Agreements but could restrict the amount recoverable by way of interest under such Agreements; |
5
4.6. | claims may be or become subject to defences of set-off or counter-claim; |
4.7. | an Irish court has power to stay an action where it is shown that there is some other forum having competent jurisdiction which is more appropriate for the trial of the action, in which the case can be tried more suitably for the interests of all the parties and the ends of justice, and where staying the action is not inconsistent with Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast); |
4.8. | the enforceability of severance clauses is at the discretion of the court and may not be enforceable in all circumstances; |
4.9. | a waiver of all defences to any proceedings may not be enforceable; |
4.10. | any transfer of, or payment in respect of a Note (including the Guarantee thereof) or Agreement involving any country or person which is currently the subject of an order made by the Minister for Finance of Ireland restricting financial transfers pursuant to the Financial Transfers Act, 1992 and/or Section 42 of the Criminal Justice (Terrorist Offences) Act, 2005 or the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 and any transfer of, or payment in respect of, a Note or Agreement involving the government of any country which is currently the subject of United Nations sanctions, any person or body resident in, incorporated in or constituted under the laws of any such country or exercising public functions in any such country or any person or body controlled by any of the foregoing may be subject to restrictions pursuant to such sanctions as implemented in Irish law; and |
4.11. | we express no opinion on any taxation matters or on the contractual terms of the relevant documents other than by reference to the legal character thereof. |
We hereby consent to the filing of this opinion with the SEC as an exhibit to the current report on Form 8-K to be filed by the Issuer in connection with the offering of the Notes. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder.
Yours faithfully
/s/ A&L Goodbody
A&L Goodbody
6
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