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): October 25, 2012
C. R. Bard, Inc.
(Exact name of registrant as specified in its charter)
New Jersey | 001-6926 | 22-1454160 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) | ||
730 Central Avenue Murray Hill, New Jersey |
07974 | |||
(Address of principal executive offices) | (Zip Code) |
(908) 277-8000
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Material Definitive Agreement. |
On October 25, 2012, C. R. Bard, Inc. (the Company) entered into an underwriting agreement (the Underwriting Agreement) with Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Goldman, Sachs & Co. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein, in connection with the offer and sale of $500,000,000 aggregate principal amount of 1.375% notes due 2018 (the Notes). A copy of the Underwriting Agreement is attached as Exhibit 1.1.
The Notes were offered and sold pursuant to the Companys automatic shelf registration statement on Form S-3 (Registration No. 333-171166) (the Registration Statement) filed with the Securities and Exchange Commission (the SEC) on December 15, 2010, as supplemented by the final prospectus supplement, dated October 25, 2012 and filed with the SEC on October 26, 2012.
The Notes were issued pursuant to an indenture dated as of December 20, 2010 (the Base Indenture) between the Company and Wells Fargo Bank, National Association, as trustee, as supplemented by a first supplemental indenture dated as of December 20, 2010 (the First Supplemental Indenture) and a second supplemental indenture dated as of October 30, 2012 (the Second Supplemental Indenture). A copy of the Base Indenture and the First Supplemental Indenture have been filed as Exhibit 4.1 and Exhibit 4.2 to the Companys Current Report on Form 8-K, filed on December 20, 2010. A copy of the Second Supplemental Indenture, including the form of the Notes, is attached hereto as Exhibit 4.1.
The above descriptions of the Underwriting Agreement, the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the Notes in this report are summaries only and are qualified in their entirety by the terms of such agreements and instruments, respectively. Each of the Underwriting Agreement, the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture and the form of the Notes is incorporated herein by reference into the Registration Statement.
In connection with the offering of the Notes, the Company is filing as Exhibit 5.1 and Exhibit 5.2 hereto opinions of counsel addressing the validity of the Notes and certain related matters. Such opinions are incorporated by reference into the Registration Statement.
Item 9.01. | Financial Statements and Exhibits. |
(d) | Exhibits. |
Exhibit |
Description | |
1.1 | Underwriting Agreement, dated October 25, 2012, by and among C. R. Bard, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein. | |
4.1 | Second Supplemental Indenture, dated as of October 30, 2012, between C. R. Bard, Inc. and Wells Fargo Bank, National Association, as Trustee. | |
4.2 | Form of 1.375% Notes due 2018 (included as Exhibit A in Exhibit 4.1). | |
5.1 | Opinion of Weil, Gotshal & Manges LLP. | |
5.2 | Opinion of Drinker Biddle & Reath LLP. | |
23.1 | Consent of Weil, Gotshal & Manges LLP (included as part of Exhibit 5.1). | |
23.2 | Consent of Drinker Biddle & Reath LLP (included as part of Exhibit 5.2). |
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.
C. R. BARD, INC. | ||
By: | /s/ Richard C. Rosenzweig | |
Name: | Richard C. Rosenzweig | |
Title: | Vice President, Law and Assistant Secretary |
Date: October 30, 2012
INDEX TO EXHIBITS
Exhibit |
Description | |
1.1 | Underwriting Agreement, dated October 25, 2012, by and among C. R. Bard, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein. | |
4.1 | Second Supplemental Indenture, dated as of October 30, 2012, between C. R. Bard, Inc. and Wells Fargo Bank, National Association, as Trustee. | |
4.2 | Form of 1.375% Notes due 2018 (included as Exhibit A in Exhibit 4.1). | |
5.1 | Opinion of Weil, Gotshal & Manges LLP. | |
5.2 | Opinion of Drinker Biddle & Reath LLP. | |
23.1 | Consent of Weil, Gotshal & Manges LLP (included as part of Exhibit 5.1). | |
23.2 | Consent of Drinker Biddle & Reath LLP (included as part of Exhibit 5.2). |
Exhibit 1.1
Execution Version
C. R. Bard, Inc.
$500,000,000 1.375% Notes due 2018
UNDERWRITING AGREEMENT
October 25, 2012
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Goldman, Sachs & Co.
Wells Fargo Securities, LLC
Underwriting Agreement
October 25, 2012
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
WELLS FARGO SECURITIES, LLC
As Representatives of the several Underwriters
c/o Wells Fargo Securities, LLC
301 S. College Street
Charlotte, NC 28288
Ladies and Gentlemen:
Introductory. C. R. Bard, Inc., a New Jersey corporation (the Company), proposes to issue and sell to the several underwriters named in Schedule A (the Underwriters), acting severally and not jointly, the respective amounts set forth in such Schedule A of $500,000,000 aggregate principal amount of the Companys 1.375% Notes due 2018 (the Notes). Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Wells Fargo Securities, LLC have agreed to act as representatives of the several Underwriters (in such capacity, the Representatives) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture, dated as of December 20, 2010 (the Base Indenture), between the Company and Wells Fargo, National Association, as trustee (the Trustee). Certain terms of the Notes will be established pursuant to a second supplemental indenture to the Base Indenture (the Supplemental Indenture and together with the Base Indenture, the Indenture). The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the Depositary), pursuant to a Blanket Letter of Representations, to be dated on or before the Closing Date (as defined in Section 2 below) (the DTC Agreement), among the Company and the Depositary.
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), an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) on Form S-3 (File No. 333-171166), which contains a base prospectus (the Base Prospectus), to be used in connection with the public offering and sale of debt securities, including the Notes, and other securities of the Company, and the offering thereof from time-to-time in accordance with Rule 415 under the Securities Act. Such registration statement, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the
1
Securities Act, is called the Registration Statement. The term Prospectus shall mean the final prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time that this Underwriting Agreement (the Agreement) is executed (the Execution Time) by the parties hereto. The term Preliminary Prospectus shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to 3:12 p.m. on October 25, 2012 (the Initial Sale Time). All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (EDGAR).
All references in this Agreement to financial statements and schedules and other information which is contained, included or stated (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the Exchange Act), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
SECTION 1. Representations and Warranties of the Company
The Company hereby represents, warrants and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in each case, a Representation Date), as follows:
a) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement became effective under the Securities Act upon filing with the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the Trust Indenture Act).
2
At the respective times the Registration Statement and any post-effective amendments thereto became effective and at each Representation Date, the Registration Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
b) Disclosure Package. The term Disclosure Package shall mean (i) the Preliminary Prospectus dated October 25, 2012, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an Issuer Free Writing Prospectus), if any, identified in Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8 hereof.
c) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii) when read together with the other information in the Disclosure Package, at the Initial Sale Time, and when
3
read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the Company was and is a well known seasoned issuer as defined in Rule 405 of the Securities Act. The Registration Statement is an automatic shelf registration statement, as defined in Rule 405 of the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
e) Company is not an Ineligible Issuer. (i) At the time of filing the Registration Statement and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Notes under this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus the Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8 hereof.
4
g) Distribution of Offering Material By the Company. The Company has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex I hereto or any electronic road show or other written communications reviewed and consented to by the Representatives and listed on Annex II hereto (collectively, Company Additional Written Communication). Each such Company Additional Written Communication, when taken together with the Disclosure Package, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Company Additional Written Communication based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information described as such in Section 8 hereof.
h) No Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived.
i) The Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
j) Authorization of the Base Indenture. The Base Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
k) Authorization of the Supplemental Indenture. The Supplemental Indenture has been duly authorized and, at the Closing Date, will be duly qualified under the Trust Indenture Act and will have been duly executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
l) Authorization of the Notes. The Notes to be purchased by the Underwriters from the Company are in the form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid
5
and binding obligations of the Company, enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the Indenture.
m) Description of the Notes and the Indenture. The Notes and the Indenture conform in all material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
n) Accuracy of Statements in Prospectus. The statements in each of the Preliminary Prospectus and the Prospectus under the captions Description of the Notes and Description of the Debt Securities, in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
o) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package, subsequent to the respective dates as of which information is given in the Disclosure Package, (i) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree and (ii) there has been no material adverse change, or any development that would reasonably be expected to result in a material adverse change, in the condition, financial or otherwise, or in the earnings, management, business, properties, results of operations or prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity (any such change is called a Material Adverse Change).
p) Independent Accountants. KPMG LLP, who have expressed their opinion with respect to the Companys audited financial statements for the fiscal years ended 2011, 2010 and 2009 incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, are independent public accountants with respect to the Company as required by the Securities Act and the Exchange Act and are an independent registered public accounting firm with the Public Company Accounting Oversight Board.
q) Preparation of the Financial Statements. The financial statements, together with the related schedule and notes thereto, incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements comply as to form with the accounting requirements of the Securities Act and have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto. No other financial statements are required to be included in the Registration Statement. The selected financial data and the summary financial information included in the Preliminary Prospectus and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent
6
with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus. In addition, if any pro forma financial statements of the Company and its subsidiaries and the related notes thereto is included in the Registration Statement, the Preliminary Prospectus and the Prospectus, such pro forma financial statements and related notes present fairly in all material respects the information shown therein, have been prepared in accordance with the Commissions rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in all material respects in accordance with the Commissions rules and guidelines applicable thereto.
r) Incorporation and Good Standing of the Company and its Subsidiaries. Each of the Company and its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X, the Significant Subsidiaries) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and, in the case of the Company, to enter into and perform its obligations under this Agreement. Each of the Company and each Significant Subsidiary is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing or to have such power or authority would not, and would not reasonably be expected to, individually or in the aggregate, have a material adverse effect (i) on the condition, financial or otherwise, or in the earnings, management, business, properties or results of operations, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity or (ii) the ability of the Company to perform its obligations under, and consummate the transactions contemplated by, this Agreement, the Indenture and the Notes (each, a Material Adverse Effect). All of the issued and outstanding shares of capital stock of each subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim that, individually or in the aggregate, have had or are reasonably likely to result in a Material Adverse Effect. The Company does not have any subsidiary not listed on Exhibit 21 to the Annual Report on Form 10-K which is required to be so listed.
s) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the Annual Report on Form 10-K under the caption Selected Financial Data and incorporated by reference in the Disclosure Package and the Prospectus (other than for subsequent issuances, if any, pursuant to employee benefit plans described in the Disclosure Package and the Prospectus or upon exercise of outstanding options described in the Disclosure Package and the Prospectus, as the case may be).
7
t) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its Significant Subsidiaries is in violation or in default (or, with the giving of notice or lapse of time or both, would be in default) (Default) under its articles of incorporation, charter or by-laws and neither the Company nor any of its subsidiaries is (i) in Default under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an Existing Instrument) or (ii) in violation of any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, as applicable, except, with respect to clauses (i) and (ii) only, for such Defaults or violations as would not, individually or in the aggregate have a Material Adverse Effect. The Companys execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby, by the Disclosure Package and by the Prospectus (i) have been duly authorized by all necessary corporate action and will not result in any violation or Default under the articles of incorporation, charter or by-laws of the Company or any subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument, and (iii) will not result in any violation of any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, except, with respect to clauses (ii) and (iii) only, for such Defaults or violations as would not, individually or in the aggregate have a Material Adverse Effect. No consent, approval, authorization or other order of, or registration or filing with, any court or other governmental or regulatory authority or agency is required for the Companys execution, delivery and performance of this Agreement or consummation of the transactions contemplated hereby, by the Disclosure Package or by the Prospectus, except such as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable state securities or blue sky laws and from the Financial Industry Regulatory Authority (the FINRA). As used herein, a Debt Repayment Triggering Event means any event or condition which gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holders behalf) issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
u) No Material Actions or Proceedings. Except as disclosed in the Prospectus and the Disclosure Package, there are no legal or governmental actions, suits or proceedings pending or, to the Companys knowledge, threatened (i) against or affecting the Company or any of its subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned or leased by, the Company or any of its subsidiaries or (iii) relating to discrimination matters related to the Company or its subsidiaries, in each case where any such action, suit or proceeding, if determined adversely, would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
8
v) Labor Matters. No material dispute with the employees of the Company or any of its subsidiaries exists, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its subsidiaries principal suppliers, contractors or customers, that could, individually or in the aggregate, have a Material Adverse Effect.
w) Intellectual Property Rights. Except as set forth in the Disclosure Package and the Prospectus, and except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, the Company or its subsidiaries own or possess a valid right to use all patents, trademarks, service marks, trade names, copyrights, patentable inventions, trade secrets, know-how and other intellectual property (collectively, the Intellectual Property) used by the Company or its subsidiaries in, and material to, the conduct of the Companys or its subsidiaries business as now conducted or as proposed in the Disclosure Package and the Prospectus to be conducted. Except as set forth in the Disclosure Package and the Prospectus, and except as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect, (a) there is no material infringement by third parties of any of the Companys Intellectual Property and (b) there are no legal or governmental actions, suits, proceedings or claims pending or, to the Companys knowledge, threatened, against the Company (i) challenging the Companys rights in or to any Intellectual Property owned or used by the Company, (ii) challenging the validity or scope of any Intellectual Property owned by the Company, or (iii) alleging that the operation of the Companys business as now conducted infringes or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of a third party, and the Company is unaware of any facts which would form a reasonable basis for any such claim.
x) All Necessary Permits, etc. The Company and each Significant Subsidiary possess such valid and current certificates, authorizations, permits, licenses, approvals, consents and other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, and neither the Company nor any Significant Subsidiary has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization, permit, license, approval, consent or other authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could, individually or in the aggregate, have a Material Adverse Effect.
y) Title to Properties. Except as otherwise disclosed in the Disclosure Package and the Prospectus, the Company and each of its subsidiaries has good and marketable title to all the properties and assets reflected as owned in the financial statements referred to in Section 1(p) above (or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of any security interests, mortgages, liens, encumbrances, equities, claims and other defects, except such as do not, individually or in the aggregate, have a Material Adverse Effect on such property and do not materially interfere with the use made or proposed to be made of such property by the Company or such subsidiary. The real property, improvements, equipment and personal property held under lease by the Company or any subsidiary are held under valid and enforceable
9
leases, with such exceptions as are not material and do not materially interfere with the use made or proposed to be made of such real property, improvements, equipment or personal property by the Company or such subsidiary.
z) Tax Law Compliance. The Company and its subsidiaries have filed all necessary federal, state, local and foreign income and franchise tax returns in a timely manner and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against any of them, (other than for any taxes, assessments, fines or penalties as may be being contested in good faith and by appropriate proceedings), except where a default to make such filings or payments would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has made appropriate provisions in the applicable financial statements referred to in Section 1(p) above in respect of all federal, state, local and foreign income and franchise taxes for all current or prior periods as to which the tax liability of the Company or any of its subsidiaries has not been finally determined.
aa) Company Not an Investment Company. The Company is not, and after receipt of payment for the Notes and the application of the proceeds thereof as contemplated under the caption Use of Proceeds in the Preliminary Prospectus and the Prospectus will not be, required to register as an investment company within the meaning of the Investment Company Act of 1940, as amended (the Investment Company Act).
bb) Insurance. The Company and its Significant Subsidiaries are insured by recognized, and to the Companys knowledge, financially sound and reputable institutions with policies in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including, but not limited to, policies covering real and personal property owned or leased by the Company and its Significant Subsidiaries. Except as set forth in the Disclosure Package and the Prospectus: (i) all policies of insurance insuring the Company or any of its Significant Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect and (ii) the Company and its Significant Subsidiaries are in compliance with the terms of such policies and instruments in all material respects.
cc) No Price Stabilization or Manipulation. Prior to the date hereof, the Company has not taken, directly or indirectly, any action designed to or that would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes.
dd) Related Party Transactions. There are no business relationships or related-party transactions involving the Company or any subsidiary or any other person required to be described in the Preliminary Prospectus or the Prospectus that have not been described as required.
ee) No Unlawful Contributions or Other Payments. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or
10
indirectly, that would result in a material violation by such persons of either (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the FCPA), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any foreign official (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and (ii) the U.K. Bribery Act 2010 (the Bribery Act), and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance in all material respects with the FCPA and the Bribery Act and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
ff) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, if applicable to the Company or any of its subsidiaries, those of the Bank Secrecy Act, as amended by Title III of the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), and the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
gg) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
hh) Compliance with Environmental Laws. Except as otherwise disclosed in the Disclosure Package and the Prospectus, (i) each of the Company and its subsidiaries is in compliance with all federal, state, local or foreign laws, regulations, orders, permits or other legally enforceable requirements relating to pollution or protection of human health (as affected by exposure to harmful or deleterious substances) or the environment (including, without limitation, ambient air, surface water, groundwater, land surface, subsurface strata or natural resources) or wildlife, including without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of materials, substances or wastes that are regulated, characterized, defined or otherwise classified as hazardous, toxic, radioactive, a pollutant, a contaminant, or words of similar meaning and effect, including, without
11
limitation, petroleum and petroleum products (collectively, Materials of Environmental Concern), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environment Concern (collectively, Environmental Laws), except as would not, individually or in the aggregate, have a Material Adverse Effect, which compliance includes, but is not limited to, obtaining, maintaining and complying with all permits or other governmental authorizations required for the operation of the business of the Company or its subsidiaries under applicable Environmental Laws, (ii) the Company and its subsidiaries have not 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 or has liability under any Environmental Law, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) no claim, action or cause of action filed with a court or governmental authority, investigation or allegation of potential liability for investigatory costs, cleanup costs, governmental responses 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), is pending or, to the Companys knowledge, threatened against the Company or any of its subsidiaries or, to the Companys knowledge, against any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iv) to the Companys knowledge, there are no facts, actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge, presence or disposal of any Material of Environmental Concern, that reasonably would be expected to result in a notice of violation of any Environmental Law, require expenditures to be incurred pursuant to any Environmental Law, or form the basis of an Environmental Claim against the Company or any of its subsidiaries or against any person or entity whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law, except as would not, individually or in the aggregate, have a Material Adverse Effect; and (v) neither the Company nor any of its subsidiaries is subject to any pending or, to the knowledge of the Company, threatened proceeding under any Environmental Law to which a governmental authority is a party and which is reasonably likely to result in monetary sanctions of $100,000 or more.
ii) ERISA Compliance. Except where the failure could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) the Company and its ERISA Affiliates (as hereinafter defined) and any employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (collectively, ERISA)), established, maintained or contributed to by the Company, or its ERISA Affiliates, are in compliance with ERISA and the Internal Revenue Code of 1986, as amended (the Code), (ii) no reportable event (as defined under ERISA) (a Reportable Event) has occurred with respect to any pension plan as defined in Section 3(2) of ERISA) (other than a multiemployer plan within the meaning of Section 4001 of ERISA (a Multiemployer Plan)) for which the Company or any of its ERISA Affiliates has liability, contingent or otherwise (each, a Pension Plan), (iii) none of the Company or any of its ERISA Affiliates have incurred and do not reasonably expect
12
to incur any liability under (x) Title IV of ERISA with respect to the termination of, or withdrawal from, any Pension Plan or Multiemployer Plan, or (y) Sections 412, 4971 or 4975 of the Code, (iv) each Pension Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter as to its qualified status, and, to the knowledge of the Company, nothing has occurred, whether by action or failure to act, which would be reasonably expected to cause the loss of such qualification under Section 401(a) of the Code. None of the liabilities of any Pension Plan that has had a Reportable Event exceed the assets of such Pension Plan by an amount that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. ERISA Affiliate means any entity which is under common control with, or which is treated as a single employer with, the Company under Section 414(b), (c), (m) or (o) of the Code.
jj) Disclosure Controls and Procedures. The Company maintains disclosure controls and procedures, as such term is defined in Rule 13a-15 of the Exchange Act, that comply in all material respects 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.
kk) Internal Controls and Procedures. The Company maintains a system of internal accounting controls over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (iv) the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in all material respects in accordance with the Commissions rules and guidelines applicable thereto. Except as disclosed in the Disclosure Package and the Prospectus, since the end of the Companys most recent audited fiscal year, there has been (i) no material weakness or significant deficiencies in the Companys internal control over financial reporting (whether or not remediated) and (ii) no change in the Companys internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Companys internal control over financial reporting.
Any certificate signed by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Notes.
a) The Notes. The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Notes upon the terms herein set forth. On the basis of the
13
representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from the Company the aggregate principal amount of Notes set forth opposite their names on Schedule A at a purchase price of 99.273% (which amount is equal to the issue price of the Notes minus the underwriting discount) of the principal amount of the Notes, payable on the Closing Date.
b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall be made at the offices of Milbank, Tweed, Hadley and McCloy LLP, One Chase Manhattan Plaza, New York, NY 10005 (or such other place as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on October 30, 2012, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the Closing Date).
c) Public Offering of the Notes. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of the purchase price for, the Notes that the Underwriters have agreed to purchase. The Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this Agreement.
e) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the Representatives for the accounts of the several Underwriters certificates for the Notes 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 Notes shall be in such denominations and registered in such names and denominations as the Representatives shall have requested at least two full business days prior to the Closing Date and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives 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.
SECTION 3. Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements of Rule 430B of the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing,
14
of (i) the effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424 and will take such steps as it deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such document. The Company will use its reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
b) Filing of Amendments. During such period beginning on the date of this Agreement and ending on the later of the Closing Date or such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 of the Securities Act (the Prospectus Delivery Period), the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b) of the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.
c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, a signed copy of the Registration Statement as originally filed and a signed copy of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and a signed copy of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Representatives. The Registration Statement and each amendment thereto furnished to the Representatives will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
d) Delivery of Prospectuses. The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge,
15
during the Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the Representatives of any such event, development or condition and (2) promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f) Blue Sky Compliance. The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Notes. The Company shall not be required to qualify to transact business or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business. The Company will advise the Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold by it in the manner described under the caption Use of Proceeds in the Preliminary Prospectus and the Prospectus.
16
h) Depositary. The Company will cooperate with the Underwriters and use its reasonable efforts to permit the Notes to be eligible for clearance and settlement through the facilities of the Depositary.
i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission and the New York Stock Exchange all reports and documents required to be filed under the Exchange Act.
j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish an open put equivalent position within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company similar to the Notes or securities exchangeable for or convertible into debt securities similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
k) Final Term Sheet. The Company will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and attached as Exhibit C hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the Final Term Sheet). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
l) Permitted Free Writing Prospectuses. The Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to or deemed to be consented to by the Representatives is hereinafter referred to as a Permitted Free Writing Prospectus. The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus as defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k).
17
m) Registration Statement Renewal Deadline. If immediately prior to the third anniversary of the initial effective date of the Registration Statement (the Renewal Deadline), any of the Notes remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline, if it has not already done so and is eligible to do so, file a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will, prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representatives, and will use its reasonable efforts to cause such registration statement to be declared effective within 60 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement relating to the Notes. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be.
n) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives, (iii) use its reasonable efforts to cause such registration statement of post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
o) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
p) Compliance with Sarbanes-Oxley Act. During the Prospectus Delivery Period, the Company will comply with all applicable securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act, and use its reasonable efforts to cause the Companys directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of the Sarbanes-Oxley Act.
q) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Notes.
18
The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes, (iii) all fees and expenses of the Companys counsel, independent public or certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Notes, (v) all filing fees, reasonable attorneys fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Notes for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives, preparing a Blue Sky Survey or memorandum, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by the FINRA of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by the Depositary for book-entry transfer, (x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and expenses incurred in connection with the performance of its obligations hereunder for which provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
a) Effectiveness of Registration Statement. The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with
19
to the reasonable satisfaction of counsel to the Underwriters and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
b) Accountants Comfort Letter. On the date hereof, the Representatives shall have received from KPMG LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received from KPMG LLP, independent public or certified public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
d) No Objection. If the Registration Statement and/or the offering of the Notes has been filed with the FINRA for review, the FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
e) No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material Adverse Change;
(ii) there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (c) of this Section 5 which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its subsidiaries by any nationally recognized statistical rating organization as such term is defined in Section 3(a)(62) of the Exchange Act.
f) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have received the favorable opinion of Weil, Gotshal & Manges LLP, counsel for the Company dated as of such Closing Date, substantially to the effect set forth in Exhibit A.
20
g) Opinion of New Jersey Counsel for the Company. On the Closing Date, the Representatives shall have received the favorable opinion of Drinker Biddle & Reath LLP, New Jersey counsel for the Company, dated as of such Closing Date, substantially to the effect set forth in Exhibit B.
h) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall have received the favorable opinion of Milbank, Tweed, Hadley & McCloy LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
i) Officers Certificate. On the Closing Date, the Representative shall have received a written certificate executed by the Chairman of the Board or the Chief Executive Officer or the President of the Company and the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose have been instituted or threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form;
(iii) the representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date.
j) Additional Documents. On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, or otherwise waived by the Representatives, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters Expenses. If this Agreement is terminated by the Representatives pursuant to Section 5 or 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal, inability or failure on the part of
21
the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Notes, including but not limited to fees and disbursements of counsel, printing expenses and travel expenses.
SECTION 7. Effectiveness of this Agreement. This Agreement shall not become effective until the execution of this Agreement by the parties hereto.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its directors, officers, employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Underwriter and each such director, officer, employee, agent and controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter or such director, officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity obligation shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The indemnity obligation set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
22
(b) Indemnification of the Company, its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein; and to reimburse the Company, or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company, or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the only information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth in paragraph five (the first and second sentences only), paragraph eight (third sentence only), paragraph nine (the first, third and fourth sentences only) and paragraph eleven (the first sentence only) under the heading Underwriting in the Preliminary Prospectus and the Prospectus. The indemnity obligation set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under Section 8(a) or (b) of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under Section 8(a) or (b), notify the indemnifying party in writing of the commencement thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise than under the indemnity agreement contained in Section 8(a) or (b) or to the extent it is not materially prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party,
23
the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and counsel to such indemnified party shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by the Representatives and that all such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying partys election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under Section 8(a) or (b) for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
24
SECTION 9. Contribution. If the indemnification provided for in Section 8 is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus bear to the aggregate initial public offering price of the Notes as set forth on such cover. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in
25
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company with the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
SECTION 10. Default of One or More of the Several Underwriters. If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes, which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination. In any such case, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
SECTION 11. Termination of this Agreement. Prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Companys securities shall have been suspended or limited by the Commission or the New York Stock Exchange, or trading in securities generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or the FINRA; (ii) a general banking moratorium shall have been declared by any federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial
26
change or development involving a prospective substantial change in United States or international political, financial or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Notes in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any Material Adverse Change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
SECTION 12. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, is an arms-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
SECTION 13. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter, the Company, the officers or employees of the Company, or any person controlling the Company, as the case may be or (B) acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes sold hereunder and any termination of this Agreement.
27
SECTION 14. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
50 Rockefeller Plaza
New York, NY 10020
Facsimile: 212-901-7881
Attention: High Grade Debt Capital Markets Transaction Management/Legal
Goldman, Sachs & Co.
200 West Street
New York, NY 10282
Telephone: 866-471-2526
Attention: Registration Department
and
Wells Fargo Securities, LLC
301 South College Street
Charlotte, NC 28288
Facsimile: 704-383-9165
Attention: Transaction Management
with a copy to:
Milbank, Tweed, Hadley & McCloy LLP
One Chase Manhattan Plaza
New York, NY 10005
Facsimile: (212) 310-5022
Attention: Rod Miller
If to the Company:
C. R. Bard, Inc.
730 Central Avenue
Murray Hill, NJ 07974
Facsimile: (908) 277-8025
Attention: Office of the General Counsel
28
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Facsimile: (212) 310-8165
Attention: Matthew Bloch
Any party hereto may change the address for receipt of communications by giving like written notice to the others.
SECTION 15. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the directors, officers, employees, agents and controlling persons referred to in Sections 8 and 9, and in each case their respective successors, and no other person will have any right or obligation hereunder. The term successors shall not include any purchaser of the Notes as such from any of the Underwriters merely by reason of such purchase.
SECTION 16. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
(a) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (Related Proceedings) may be instituted in the federal courts of the United States of America located in The City and County of New York, Borough of Manhattan, or the courts of the State of New York in each case located in The City and County of New York, Borough of Manhattan (collectively, the Specified Courts), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a Related Judgment), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such partys address set forth in this Agreement shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.
29
SECTION 18. General Provisions. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
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.
30
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, | ||||
C. R. Bard, Inc. | ||||
By: |
/s/ Christopher S. Holland | |||
Name: | Christopher S. Holland | |||
Title: | Senior Vice President and Chief Financial Officer |
[Signature Page to the Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED | ||||
GOLDMAN, SACHS & CO. | ||||
WELLS FARGO SECURITIES, LLC | ||||
Acting as Representatives of the several Underwriters named in the attached Schedule A. | ||||
Merrill Lynch, Pierce, Fenner & Smith Incorporated | ||||
By: | /s/ James Probert | |||
Name: | James Probert | |||
Title: | Managing Director | |||
Goldman, Sachs & Co. | ||||
By: | /s/ Adam T. Greene | |||
Name: | Adam T. Greene | |||
Title: | Vice President | |||
Wells Fargo Securities, LLC | ||||
By: | /s/ Carolyn Hurley | |||
Name: | Carolyn Hurley | |||
Title: | Director |
[Signature Page to the Underwriting Agreement]
SCHEDULE A
Underwriters |
Aggregate Principal Amount of Notes to be Purchased |
|||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 108,333,000 | ||
Goldman, Sachs & Co. |
$ | 108,333,000 | ||
Wells Fargo Securities, LLC |
$ | 108,333,000 | ||
Barclays Capital Inc. |
$ | 31,250,000 | ||
J.P. Morgan Securities LLC |
$ | 31,250,000 | ||
PNC Capital Markets LLC |
$ | 31,250,000 | ||
RBC Capital Markets, LLC |
$ | 31,250,000 | ||
Mitsubishi UFJ Securities (USA), Inc. |
$ | 16,667,000 | ||
SunTrust Robinson Humphrey, Inc. |
$ | 16,667,000 | ||
U.S. Bancorp Investments, Inc. |
$ | 16,667,000 | ||
Total |
$ | 500,000,000 |
1
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated October 25, 2012
1
ANNEX II
Company Additional Written Communication
None.
Annex-2
EXHIBIT A
[Form of Opinion of Weil, Gotshal & Manges LLP]
1. The Agreement has been duly and validly executed and delivered by the Company (insofar as such execution and delivery are governed by the laws of the State of New York).
2. The Indenture has been duly and validly executed and delivered by the Company (insofar as such execution and delivery are governed by the laws of the State of New York) and (assuming the due authorization, execution and delivery thereof by the Trustee) constitutes the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). The Indenture has been duly qualified under the Trust Indenture Act.
3. The Notes have been duly and validly executed and delivered by the Company (insofar as such execution and delivery are governed by the laws of the State of New York) and, when delivered to and paid for by the Underwriters in accordance with the terms of the Agreement (assuming the due authentication and delivery thereof by the Trustee), will constitute the legal, valid and binding obligations of the Company, enforceable against it in accordance with its terms and will be entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
4. The statements in the Disclosure Package and Prospectus under the captions Description of Debt Securities and Description of the Notes, insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein in all material respects.
5. The statements in the Disclosure Package and Prospectus under the caption Certain United States Federal Tax Consequences to Non-U.S. Holders, insofar as they constitute statements of United States federal income tax law or legal conclusions with respect thereto, and subject to the limitations set forth therein, fairly summarize the matters referred to therein in all material respects.
6. The issuance and sale of the Notes by the Company, the execution and delivery by the Company of the Agreement and the Indenture, and the performance by the Company of its obligations thereunder, will not conflict with, constitute a breach of or default under or violate (i) any of the terms, conditions or provisions of any document, agreement or
other instrument listed on Schedule A hereto, (ii) New York or federal law (other than federal and state securities or blue sky laws, as to which we express no opinion in this paragraph) or (iii) any judgment, writ, injunction, decree, order or ruling of any court or governmental authority binding on the Company of which we are aware.
7. No consent, approval, waiver, license or authorization or other action by or filing with any New York or federal governmental authority is required in connection with the issuance and sale of the Notes by the Company, the execution and delivery by the Company of the Agreement, the consummation by the Company of the transactions contemplated thereby or the performance by the Company of its obligations thereunder, except for filings and other actions required pursuant to the Securities Act of 1933 and/or the Securities Exchange Act of 1934 and the rules and regulations thereunder, and federal and state securities or blue sky laws, as to which we express no opinion in this paragraph.
8. The Registration Statement has become effective under the Securities Act and, based solely on a telephone confirmation by the staff of the Commission, we are not aware of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use. To our knowledge, no proceedings therefor have been initiated or overtly threatened by the Commission and any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by such Rule.
9. To our knowledge, there are no legal or governmental proceedings pending or overtly threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed or incorporated by reference as exhibits to the Registration Statement that are not described, filed or incorporated as required.
10. The Company is not, and immediately after giving effect to the sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be, required to register as an investment company, under the Investment Company Act of 1940, as amended.
B-2
EXHIBIT B
[Form of Opinion of Drinker Biddle & Reath LLP]
1. The Company (a) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Jersey, and (b) is authorized to issue 605,000,000 shares, consisting of 600,000,000 shares of common stock, par value $0.25 per share, and 5,000,000 shares of preferred stock, par value $1.00 per share.
2. The Company has the corporate power and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
3. To our knowledge, there are no pending or threatened legal or governmental proceedings required to be described in the Disclosure Package and the Prospectus that are not described as required.
4. No consent, approval, authorizations, order, registration or qualification of or with any New Jersey state governmental agency or body or, to our knowledge, any New Jersey state court, is required for the issue and sale of the Notes by the Company and the compliance by the Company with all of the provisions of the Underwriting Agreement and the Indenture, except for the registration under the Securities Act of the Notes, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.
5. The Companys execution, delivery and performance of the Underwriting Agreement, Indenture and Notes and consummation of the transactions contemplated thereby, by the Disclosure Package and by the Prospectus: (i) have been duly authorized by all necessary corporate action and, to the extent governed by New Jersey law, have been duly executed and delivered; (ii) will not result in any default under the Companys Organizational Documents; and (iii) will not result in any violation of (A) any statute, law, rule, regulation or (B) judgment, order or decree known to us of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties.
B-3
EXHIBIT C
C. R. Bard, Inc.
Pricing Term Sheet
October 25, 2012
U.S. $500,000,000 1.375% Senior Notes due 2018
Issuer: | C. R. Bard, Inc. | |
Format: | SEC Registered | |
Size: | $500 million aggregate principal amount of 1.375% notes due 2018 (the notes) | |
Expected Ratings:* | ||
Trade Date: | October 25, 2012 | |
Settlement Date: | October 30, 2012 (T+3) | |
Maturity Date: | January 15, 2018 | |
Interest Payment Dates: | Semi-annually on each January 15 and July 15; commencing on July 15, 2013 | |
Benchmark Treasury: | UST 0.625% due September 30, 2017 | |
Spread to Benchmark Treasury: | +60 basis points | |
Benchmark Treasury Price / Yield: | 99-05; 0.800% | |
Yield to Maturity: | 1.400% | |
Coupon (Interest Rate): | 1.375% | |
Price to Public: | 99.873% | |
Redemption Provision: | Make-whole call at any time at a redemption price equal to the greater of (i) 100% of the principal amount of the notes being redeemed and (ii) discounted present value of the principal and interest (exclusive of interest accrued to the date of redemption) at the treasury rate plus 10 basis points, in each case, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. |
Denominations: | $2,000 x $1,000 | |
CUSIP / ISIN: | 067383 AD1 / US067383AD19 | |
Joint Book-Running Managers: | Merrill Lynch, Pierce, Fenner & Smith Incorporated Goldman, Sachs & Co. Wells Fargo Securities, LLC | |
Co-Managers: | J.P. Morgan Securities LLC Barclays Capital Inc. RBC Capital Markets, LLC PNC Capital Markets LLC SunTrust Robinson Humphrey, Inc. Mistubishi UFJ Securities (USA), Inc. U.S. Bancorp Investments, Inc. | |
Other Changes to the Preliminary Prospectus Supplement: | ||
Pro Forma Ratio of Earnings to Fixed Charges: | As adjusted to give effect to the sale of the notes and the application of the estimated net proceeds as if they had occurred at the beginning of the respective periods, our ratio of earnings to fixed charges would have been approximately 15.36x for the nine months ended September 30, 2012 and 11.11x for the year ended December 31, 2011. |
* | A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the prospectus relating to the offering may be obtained by calling or e-mailing Merrill Lynch, Pierce, Fenner & Smith Incorporated at 1-800-294-1322 or dg.prospectus_requests@baml.com; Goldman, Sachs & Co. at 1-866-471-2526 or prospectus-ny@ny.email.gs.com; and Wells Fargo Securities, LLC at 1-800-326-5897 or cmclientsupport@wellsfargo.com.
C-2
Exhibit 4.1
EXECUTION VERSION
SECOND SUPPLEMENTAL INDENTURE
Dated as of October 30, 2012
to
INDENTURE
Dated as of December 20, 2010
Between
C. R. BARD, INC.,
as Issuer
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
1.375% Notes due 2018
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1. |
DEFINITIONS |
2 | ||||
Section 1.1. |
Definition of Terms |
2 | ||||
Section 1.2. |
Additional Defined Terms |
2 | ||||
ARTICLE 2. |
TERMS AND CONDITIONS OF NOTES |
6 | ||||
Section 2.1. |
Designation and Principal Amount |
6 | ||||
Section 2.2. |
Maturity |
6 | ||||
Section 2.3. |
Further Issues |
6 | ||||
Section 2.4. |
Payment |
7 | ||||
Section 2.5. |
Global Securities |
7 | ||||
Section 2.6. |
Interest |
7 | ||||
Section 2.7. |
Authorized Denominations |
7 | ||||
Section 2.8. |
Redemption and Sinking Fund |
7 | ||||
Section 2.9. |
Ranking |
7 | ||||
Section 2.10. |
Appointments |
7 | ||||
Section 2.11. |
Defeasance |
8 | ||||
ARTICLE 3. |
REDEMPTION OF THE NOTES |
8 | ||||
Section 3.1. |
Optional Redemption by the Company |
8 | ||||
ARTICLE 4. |
ADDITIONAL COVENANTS |
8 | ||||
Section 4.1. |
Limitations on Liens |
8 | ||||
Section 4.2. |
Limitations on Sale and Leaseback Transactions |
10 | ||||
Section 4.3. |
Change of Control Triggering Event |
11 | ||||
ARTICLE 5. |
SATISFACTION AND DISCHARGE |
13 | ||||
Section 5.1. |
Defeasance and Discharge of Obligations |
13 | ||||
ARTICLE 6. |
FORM OF NOTES |
14 | ||||
Section 6.1. |
Form of Notes |
14 | ||||
ARTICLE 7. |
ORIGINAL ISSUE OF NOTES |
14 | ||||
Section 7.1. |
Original Issue of Notes |
14 | ||||
ARTICLE 8. |
MISCELLANEOUS |
14 | ||||
Section 8.1. |
Ratification of Indenture |
14 | ||||
Section 8.2. |
Trustee Not Responsible for Recitals |
14 | ||||
Section 8.3. |
Governing Law |
14 | ||||
Section 8.4. |
Separability |
14 | ||||
Section 8.5. |
Counterparts |
14 | ||||
EXHIBIT A Form of Note |
A-1 |
SECOND SUPPLEMENTAL INDENTURE, dated as of October 30, 2012 (this Supplemental Indenture), between C. R. BARD, INC., a corporation duly organized and existing under the laws of the State of New Jersey (the Company), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States, as Trustee (the Trustee).
RECITALS OF THE COMPANY
WHEREAS, the Company executed and delivered to the Trustee the Indenture, dated as of December 20, 2010, (the Indenture), to provide for the issuance of the Companys debt securities (the Securities), to be issued in one or more series;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Securities under the Indenture to be known as its 1.375% Notes due 2018 (the Notes), the form and substance and the terms, provisions and conditions thereof to be set forth as provided in the Indenture and this Supplemental Indenture;
WHEREAS, the Board of Directors of the Company by duly adopted resolutions has authorized the proper officers of the Company to, among other things, determine the terms of the Securities to be issued under the Indenture and execute any and all appropriate documents necessary or appropriate to effect each such issuance;
WHEREAS, this Supplemental Indenture is being entered into pursuant to the provisions of Section 901(8) of the Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, have been performed, and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the forms and terms of the Notes, the Company covenants and agrees, with the Trustee, as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Definition of Terms. Unless the context otherwise requires:
(a) each term defined in the Indenture has the same meaning when used in this Supplemental Indenture;
(b) the singular includes the plural, and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
Section 1.2. Additional Defined Terms. As used herein, the following defined terms shall have the following meanings with respect to the Notes only:
Attributable Debt means, in respect of a Sale and Leaseback Transaction, as of any particular time, the present value (discounted at the rate of interest implicit in the terms of the lease involved in such Sale and Leaseback Transaction, as determined in accordance with GAAP if known or if not known using a discount factor equal to the weighted average yield to maturity of the Notes then outstanding and compounded semiannually) of the obligation of the lessee thereunder for rental payments (excluding, however, any amounts required to be paid by such lessee, whether or not designated as rent or additional rent, on account of maintenance and repairs, insurance, taxes, assessments, water rates or similar charges or any amounts required to be paid by such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments, water rates or similar charges) during the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended).
Capital Stock means the capital stock of every class whether now or hereafter authorized, regardless of whether such capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
Change of Control means the occurrence of any of the following:
| the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any person (as that term is used in Section 13(d)(3) of the Exchange Act), other than to the Company or one of its Subsidiaries or a person controlled by the Company or one of the Companys Subsidiaries; |
| the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person (as that |
2
term is used in Section 13(d)(3) of the Exchange Act), other than the Company or one of its Subsidiaries, becomes the beneficial owner (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Companys then outstanding Voting Stock or other Voting Stock into which the Companys Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; |
| the first day on which a majority of the members of the Companys board of directors are not Continuing Directors; or |
| the adoption of a plan relating to the Companys liquidation or dissolution. |
Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (a) the Company becomes a direct or indirect wholly-owned Subsidiary of a holding company and (b)(x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Companys Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
Change of Control Triggering Event means the occurrence of both a Change of Control and a Rating Event.
Comparable Treasury Issue means the United States Treasury security or securities selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Notes being redeemed.
Comparable Treasury Price means, with respect to any redemption date,
| the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or |
| if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations so received. |
Consolidated Net Tangible Assets means the total amount of assets (less applicable reserves and other properly deductible items) after deducting (1) all current liabilities (excluding the amount of those which are by their terms extendable or renewable at the option of the obligor to a date more than 12 months after the date as of which the amount is being determined) and (2) all customer lists, computer software, licenses, patents, patent applications, copyrights, trademarks, trade names, goodwill, capitalized research and development costs and other like intangibles, treasury stock and unamortized debt discount and expense, and all other like intangible assets, all as stated on the Companys most recent publicly available consolidated balance sheet preceding the date of determination and determined in accordance with GAAP.
3
Continuing Directors means, as of any date of determination, any member of the Companys board of directors who:
| was a member of such board of directors on the first date that the Notes were first issued; or |
| was nominated for election, elected or appointed to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of a proxy statement in which such member was named as a nominee for election as a director). |
Debt means any and all of the obligations of a Person for money borrowed or evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof) if and to the extent any of the foregoing would appear as a liability upon a balance sheet of such person as of the date of which the Debt is to be determined.
GAAP means generally accepted accounting principles set forth in the FASB Accounting Standards Codification or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect from time to time. At any time after the initial date of issuance of the Notes, the Company may elect (by providing written notice to the trustee) to apply International Financial Reporting Standards (IFRS) in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS (except as otherwise provided herein); provided that any such election, once made, shall be irrevocable.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the Company to act as the Independent Investment Banker.
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any successor rating categories of Moodys) and a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P).
Lien means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, and any financing lease having substantially the same economic effect as any of the foregoing) on or with respect to any property.
Moodys means Moodys Investors Service, Inc., a subsidiary of Moodys Corporation, and its successors.
4
Person means an individual, a corporation, a company, a voluntary association, a partnership, a trust, a joint venture, a limited liability company, an unincorporated organization, or a government or any agency, instrumentality or political subdivision thereof.
Rating Agencies means:
| each of Moodys and S&P; and |
| if either of Moodys or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Companys control, a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act that is selected by the Company (as certified by a resolution of the Companys board of directors) as a replacement agency for Moodys or S&P, or each of them, as the case may be. |
Rating Event means, with respect to the Notes, the rating of such Notes is lowered below Investment Grade by either of the Rating Agencies on any date during the period commencing 60 days prior to the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by either of the Rating Agencies).
Reference Treasury Dealer means (i) Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., and a Primary Treasury Dealer (defined herein) selected by Wells Fargo Securities, LLC and their successors and (ii) one other nationally recognized investment banking firm, that is a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer) specified from time to time by the Company; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue for the Notes (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding that redemption date.
Restricted Property means any manufacturing facility or plant, warehouse, or distribution facility owned, or leased, by the Company or a Subsidiary and located within the United States, including Puerto Rico, the gross book value (including related land, machinery and equipment without deduction of any depreciation reserves) of which is not less than 2% of Consolidated Tangible Net Assets as stated on the Companys most recent publicly available consolidated balance sheet preceding the date of determination, other than any such manufacturing facility or plant, warehouse or distribution facility which the board of directors reasonably determines is not material to the operation of the Companys business and its Subsidiaries, taken as a whole.
5
Sale and Leaseback Transaction means an arrangement with any person providing for the leasing by C. R. Bard, Inc. or a Subsidiary of any Restricted Property whereby such Restricted Property has been or is to be sold or transferred by C. R. Bard, Inc. or a Subsidiary to such person other than C. R. Bard, Inc. or any Subsidiary; provided, however, that the foregoing shall not apply to any such arrangement involving a lease for a term, including extension or renewal rights, for not more than three years.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
Subsidiary means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the outstanding shares or other interests having voting power is at the time directly or indirectly owned or controlled by such Person or one or more of the Subsidiaries of such Person. Unless the context otherwise requires, all references to Subsidiary or Subsidiaries herein shall refer to the Companys Subsidiaries.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated on the third business day preceding the redemption date, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date.
Voting Stock means, with respect to any specified person as of any date, the Capital Stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
ARTICLE 2.
TERMS AND CONDITIONS OF NOTES
Section 2.1. Designation and Principal Amount. There is hereby authorized and established a series of Securities under the Indenture, designated as the 1.375% Notes due 2018, which is initially limited in aggregate principal amount to $500,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture and except for any Securities which, pursuant to Section 303 of the Indenture, are deemed never to have been authenticated and delivered).
Section 2.2. Maturity. The Stated Maturity of principal of the Notes shall be January 15, 2018.
Section 2.3. Further Issues. The Company may at any time and from time to time, without the consent of the Holders of the Notes, issue additional notes of any series. Any
6
such additional notes shall have the same ranking, interest rate, maturity date and other terms as the Notes. Any such additional notes of a series, together with the Notes herein provided for, shall constitute a single series of Securities under the Indenture.
Section 2.4. Payment. Principal of and interest on the Notes shall be payable in U.S. dollars in immediately available funds at the office or agency of the Company maintained for such purpose in the Borough of Manhattan, The City of New York, which shall initially be at the office of the Trustee located at 45 Broadway, New York, New York 10006, Attention: Corporate Trust Services, Administrator C. R. Bard, Inc.; provided, however, that payment of interest may be made at the option of the Company by check mailed to the Holder at such address as shall appear in the Security Register at the close of business on the Regular Record Date for such Holder or by wire transfer of immediately available funds to an account specified in writing by the Holder to the Company and the Trustee prior to the relevant Regular Record Date; and provided, further, that the Company will pay principal of and interest on, the Notes in global form registered in the name of or held by The Depository Trust Company (DTC) or such other Depositary as any Officer of the Company may from time-to-time designate, or its respective nominee, by wire in immediately available funds to such Depositary or its nominee, as the case may be, as the registered Holder of such Notes in global form.
Section 2.5. Global Securities. Upon the original issuance, the Notes shall be represented by Global Securities registered in the name of Cede & Co., the nominee of DTC. The Company shall deposit the Global Securities with DTC or its custodian and register the Global Securities in the name of Cede & Co.
Section 2.6. Interest. The Notes shall bear interest (computed on the basis of a 360-day year consisting of twelve 30-day months) from October 30, 2012 at the rate of 1.375% per annum, payable semi-annually in arrears. Interest payable on each Interest Payment Date will include interest accrued from October 30, 2012, or from the most recent Interest Payment Date to which interest has been paid or duly provided for. The Interest Payment Dates on which such interest shall be payable are January 15 and July 15, commencing on July 15, 2013; and the Record Date for the interest payable on any Interest Payment Date is the close of business on January 1 or July 1, as the case may be, next preceding the relevant Interest Payment Date.
Section 2.7. Authorized Denominations. The Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 2.8. Redemption and Sinking Fund. The Notes shall not be redeemable at the option of the Company except as provided in Article 3 of this Supplemental Indenture. The Notes shall not be entitled to the benefit of any sinking fund.
Section 2.9. Ranking. The Notes shall be senior unsecured debt securities of the Company, ranking equally with the Companys other unsecured and unsubordinated debt from time-to-time outstanding.
Section 2.10. Appointments. The Trustee shall be the initial Security Registrar and initial Paying Agent for the Notes.
7
Section 2.11. Defeasance. The Company may elect, at its option at any time, pursuant to Section 1301 of the Indenture, to have Section 1302 or Section 1303 in the Indenture, or both, apply to the Notes, or all, or any principal amount thereof. The additional defeasance and discharge provisions set forth in Article 5 shall be applicable to the Notes.
ARTICLE 3.
REDEMPTION OF THE NOTES
Section 3.1. Optional Redemption by the Company.
(a) The Notes shall be redeemable as a whole or in part, at the Companys option, at any time and from time-to-time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (excluding the portion of interest that will be accrued and unpaid to and including the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 10 basis points, plus accrued and unpaid interest on the Notes to be redeemed to the date of redemption.
ARTICLE 4.
ADDITIONAL COVENANTS
Section 4.1. Limitations on Liens.
So long as any of the Notes remain outstanding, the Company shall not, nor shall the Company permit any Subsidiary to, create, incur, issue, assume or guarantee any Debt if such Debt is secured by a Lien upon any property that at the time of such issuance, assumption or guarantee constitutes a Restricted Property or on the capital stock of any Subsidiary or Debt incurred by any Subsidiary and owed to the Company or another Subsidiary, without, in any such case, effectively providing that, for so long as such lien shall continue in existence with respect to such secured Debt, the Notes shall be secured equally and ratably by such Lien with such secured Debt; provided, however, that this restriction will not apply to:
(a) Liens securing Debt existing on the date of the issuance of the Notes or Liens existing on property, capital stock, assets or Debt of any Person at the time it becomes a Subsidiary;
(b) Liens securing Debt of a Subsidiary owed to the Company or another Subsidiary;
(c) Liens on any assets existing at the time the Company or a Subsidiary acquires such assets, or to secure the payment of the purchase price for such assets, or to secure Debt incurred or guaranteed by the Company or a Subsidiary for the purpose of financing the purchase price of such assets (incurred or guaranteed prior to or within 360 days after such acquisition), or, in the case of real property, construction or improvements thereon, provided that
8
the Lien shall not apply to any assets theretofore owned by the Company or a Subsidiary other than in the case of any such construction or improvements, any real property on which the construction or improvement is located;
(d) Liens existing on the property of any Person that at the time such Person becomes a Subsidiary or is merged or consolidated with the Company or a Subsidiary or at the time such Person sells, leases or otherwise disposes of its property as an entirety or substantially as an entirety to the Company or a Subsidiary;
(e) Liens in favor of the United States or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract, statute, rule or regulation;
(f) Liens securing obligations in respect of capital leases on assets subject to such leases; provided that such leases are otherwise permitted by Section 4.2 of this Supplemental Indenture;
(g) Liens securing reimbursement obligations with respect to letters of credit arising by operation of law under Section 5-118(a) of the Uniform Commercial Code;
(h) Pledges, liens or deposits under workers compensation or similar legislation, and liens thereunder that are not currently dischargeable, or in connection with bids, tenders, contracts (other than for the payment of money) or leases to which the Company or any Subsidiary is a party, or to secure the Companys or any Subsidiarys public or statutory obligations, or in connection with obtaining or maintaining self-insurance, or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or to secure surety, performance, appeal or customs bonds to which the Company or any Subsidiary is a party, or in litigation or other proceedings in connection with the matters heretofore referred to in this bullet point, such as interpleader proceedings, and other similar pledges, liens or deposits made or incurred in the ordinary course of business;
(i) Liens created by or resulting from any litigation or other proceeding that is being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against the Company or any Subsidiary with respect to which the Company or such Subsidiary in good faith is prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired; or final unappealable judgment liens which are satisfied within 15 days of the date of judgment; or liens incurred by the Company or any Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Company or such Subsidiary is a party;
(j) Liens for taxes or assessments or governmental charges or levies not yet due or delinquent; or that can thereafter be paid without penalty, or that are being contested in good faith by appropriate proceedings; landlords liens on property held under lease; and any other liens or charges incidental to the conduct of the business of the Company or any Subsidiarys business, or the ownership of their respective assets, that were not incurred in
9
connection with the borrowing of money or the obtaining of advances or credit and that, in the opinion of the Companys board of directors, do not materially impair the use of such assets in the operation of the Company or such Subsidiarys business or the value of such Restricted Property for the purposes of such business; and
(k) Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any permitted Lien referred to in clauses (1) through (10) above, inclusive of any Lien existing at the date of the issuance of the Notes; provided, however, that the obligation secured by such new Lien shall not extend beyond the property subject to the existing Lien and is not greater in amount than the obligations secured by the Lien extended, renewed or replaced (plus an amount in respect of any applicable premium and reasonable financing fees and related transaction costs).
The Company and any Subsidiary may, without securing the Notes, create, incur, issue, assume or guarantee secured Debt which would otherwise be subject to the foregoing restrictions, if after giving effect to such Debt, the aggregate amount of such secured Debt then outstanding (not including secured Debt permitted under the foregoing exceptions (a) through (k)) plus the aggregate amount of Attributable Debt outstanding of Sale and Leaseback Transactions that would otherwise be prohibited by Section 4.2 of this Supplemental Indenture, does not exceed 15% of Consolidated Net Tangible Assets as stated on the Companys most recent publicly available consolidated balance sheet preceding the date of determination.
Section 4.2. Limitations on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Subsidiary to, enter into any Sale and Leaseback Transaction. Notwithstanding the foregoing, the Company or any Subsidiary may enter into a Sale and Leaseback Transaction if:
(a) The Sale and Leaseback Transaction is between the Company and a Subsidiary or between Subsidiaries;
(b) The Company or such Subsidiary would, at the time of entering into such Sale and Leaseback Transaction, be entitled pursuant to Section 4.1 of this Supplemental Indenture, to incur Debt secured by a Lien on such Restricted Property involved in a principal amount at least equal to the Attributable Debt of such transaction without equally and ratably securing the Notes; or
(c) The Company or any of its Subsidiaries, during the six months following the effective date of the Sale and Leaseback Transaction, apply an amount equal to the greater of the net proceeds of such sale or transfer or the fair value of the Restricted Property that the Company or its Subsidiary lease in the transaction to the voluntary retirement of the Notes or other Debt of ours or that of any Subsidiary, provided that such Debt (i) ranks pari passu or senior to the Notes under the indenture and (ii) has a stated maturity which is either more than 12 months from the date of such application or which is extendable or renewable at the option of the obligor thereon to a date more than 12 months from the date of such application; provided further that there shall be credited to the amount of net proceeds required to be applied pursuant to this clause (3) an amount equal to the sum of (x) the principal amount of Notes delivered within six
10
months of the effective date of such Sale and Leaseback Transaction to the trustee for retirement and cancellation and (y) the principal amount of other Debt of the Companys voluntarily retired by the Company within such six-month period, excluding retirements of Notes and other Debt of the Companys as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions.
The Attributable Debt of the Company and its Subsidiaries in respect of such Sale and Leaseback Transaction and all other Sale and Leaseback Transactions (other than Sale and Leaseback Transactions as are permitted under the foregoing exceptions (a) through (c)), plus the aggregate principal amount of Debt secured by Liens on Restricted Property then outstanding that otherwise would be prohibited by Section 4.1 of this Supplemental Indenture, would not exceed 15% of Consolidated Net Tangible Assets as stated on the Companys most recent publicly available consolidated balance sheet preceding the date of determination.
Section 4.3. Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the Notes pursuant to Section 3.1 of this Supplemental Indenture, each Holder of the Notes shall have the right to require the Company to purchase all or a portion (equal to $1,000 and any integral multiples of $2,000 in excess thereof) of such Holders Notes pursuant to the offer described below (a Change of Control Offer) at a purchase price equal to 101% of the aggregate principal amount of the Notes repurchased, plus accrued and unpaid interest, if any, to the date of repurchase (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.
(b) The Company shall be required to send a notice to each Holder of the Notes by first class mail, with a copy to the trustee, within 30 days following the date upon which any Change of Control Triggering Event occurred, or at the Companys option, prior to any Change of Control but after the public announcement of the pending Change of Control. The notice will govern the terms of the Change of Control Offer and shall specify, without limitation, the following:
(i) that the Change of Control Offer is being made pursuant to this Section 4.3 of this Supplemental Indenture;
(ii) that the Company is required to offer to purchase all of the outstanding principal amount of Notes, the purchase price and, that on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law (the Change of Control Payment Date), the Company shall repurchase the Notes validly tendered and not validly withdrawn pursuant to this Section 4.3;
(iii) if mailed prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control Triggering Event being consummated on or prior to the Change of Control Payment Date;
11
(iv) that any Note not tendered or accepted for payment shall continue to accrue interest;
(v) that, unless the Company defaults in making such payment, Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date;
(vi) that Holders electing to have a Note purchased pursuant to a Change of Control Offer may elect to have all or any portion of such Note purchased;
(vii) that Holders of Notes electing to have Notes purchased pursuant to a Change of Control Offer shall be required to surrender their Notes, with the form entitled Option of Holder to Elect Purchase on the reverse of the Note, or such other customary documents of surrender and transfer as the Company may reasonably request, duly completed, or transfer the Note by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the Change of Control Payment Date;
(viii) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Notes purchased;
(ix) that Holders whose Notes are purchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer);
(x) the CUSIP numbers for the Notes; and
(xi) the other instructions, as determined by the Company, consistent with this Section 3.3, that a Holder must follow.
(c) On the Change of Control Payment Date, the Company will, to the extent lawful:
(i) accept for payment all properly tendered notes or portions of notes not validly withdrawn;
(ii) deposit with the paying agent the required payment for all properly tendered Notes or portions of Notes not validly withdrawn; and
12
(iii) deliver or cause to be delivered to the trustee the repurchased Notes, accompanied by an officers certificate stating, among other things, the aggregate principal amount of repurchased Notes.
(d) The Company shall not be required to make a Change of Control Offer with respect to the Notes upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements in this Section 4.3 for such an offer made by the Company and the third party purchases all such Notes properly tendered and not withdrawn under its offer. In connection with any Change of Control Offer, the Company shall deliver an Officers Certificate and Opinion of Counsel stating that any conditions precedent in connection with such offer hereunder or under the Indenture have been satisfied.
(e) The Company shall not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable, in connection with the repurchase of Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes, the Company will comply with those securities laws and regulations and will not be deemed to have breached the Companys obligations under the Change of Control Offer provisions of the Notes by virtue of any such conflict.
ARTICLE 5.
SATISFACTION AND DISCHARGE
Section 5.1. Defeasance and Discharge of Obligations.
With respect to a redemption of all of the Notes pursuant to Section 3.1 hereof, notwithstanding the provisions of Section 1304 of the Base Indenture, for purposes of determining whether the Company has satisfied the condition set forth in clause (1) thereof, the amount of funds or U.S. Government Obligations that the Company must irrevocably deposit or cause to be deposited in trust with the Trustee shall be determined by the Company using an assumed Redemption Price calculated as of the date of deposit of such funds or U.S. Government Obligations in trust (and not, for the avoidance of doubt, the Redemption Date); provided that:
(a) at the time of deposit of such funds or U.S. Government Obligations in trust, the funds or U.S. Government Obligations in trust must be sufficient, as evidenced by a certificate of a reputable firm of certified independent accountants, investment bank or appraisal firm, to pay and discharge the principal, premium, if any, and accrued and unpaid interest on the Notes on the Redemption Date with an assumed Redemption Price calculated as of the date of deposit of such funds or U.S. Government Obligations in trust; and
(b) the Company must irrevocably deposit or cause to be deposited additional funds or U.S. Government Obligations in trust, as necessary, on the Redemption Date, as required by Section 3.1 hereof, necessary to pay the Redemption Price as determined on such date.
13
ARTICLE 6.
FORM OF NOTES
Section 6.1. Form of Notes. The Notes and the Trustees Certificate of Authentication to be endorsed thereon are to be substantially in the forms set forth in Exhibits A, and B hereto.
ARTICLE 7.
ORIGINAL ISSUE OF NOTES
Section 7.1. Original Issue of Notes. The Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order, authenticate and deliver such Notes as in such Company Order provided.
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Ratification of Indenture. The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided; provided, however, that the provisions of this Supplemental Indenture shall apply solely with respect to the Notes.
Section 8.2. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
Section 8.3. Governing Law. This Supplemental Indenture and each Note shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 8.4. Separability. In case any one or more of the provisions contained in the Indenture, this Supplemental Indenture or the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of the Indenture, this Supplemental Indenture or the Notes, but the Indenture, this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 8.5. 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.
14
[Signature page follows]
15
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the day and year first above written.
C. R. BARD, INC. | ||||
By: | /s/ Christopher S. Holland | |||
Name: | Christopher S. Holland | |||
Title: | Senior Vice President and Chief Financial Officer |
[SECOND SUPPLEMENTAL INDENTURE]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the day and year first above written.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||
By: | /s/ Martin Reed | |||
Name: Martin Reed | ||||
Title: Vice President |
[SECOND SUPPLEMENTAL INDENTURE]
EXHIBIT A
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE 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 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
C.R. BARD, INC.
1.375% Notes due 2018
CUSIP No.: 067383 AD1
ISIN: US067383AD19
No. A-[ ] | $[ ] |
C. R. BARD, INC., a corporation duly incorporated under the laws of the State of New Jersey (herein called the Company, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $[ ] ([ ] DOLLARS) on January 15, 2018, and to pay interest thereon from October 30, 2012 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on January 15 and July 15 of each
A-1
year, commencing on [ ] at the rate of 1.375% per annum, until the principal hereof is paid or made available for payment; provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of 1.375% per annum (to the extent permitted by applicable law), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of the Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the date first written above.
C. R. BARD, INC. | ||
By: |
| |
Name: | ||
Title: |
This Note is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
By: |
| |
Authorized Signatory |
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of the Company (herein called the Notes), issued and to be issued in one or more series under an Indenture, dated as of December 20, 2012 and a supplemental indenture relating to such series dated as of October 30, 2012 (herein, collectively called the Indenture, which term shall have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, such series initially limited in aggregate principal amount to $500,000,000; provided that the Company may at any time and from time to time, without the consent of any Holder, issue additional Notes of this series. All terms used in this Note that are not defined in the Indenture shall have the meaning assigned to them in the Indenture.
The Notes shall be redeemable as a whole or in part, at the Companys option, at any time and from time to time, at a redemption price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by an Independent Investment Banker, of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (excluding the portion of interest that will be accrued and unpaid to and including the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 10 basis points, plus accrued and unpaid interest on the Notes to be redeemed to the date of redemption.
The Notes of this series are not entitled to the benefit of any sinking fund.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the Notes of this series or certain restrictive covenants and Events of Default with respect to such Notes, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the principal of such Notes may be declared, or shall immediately become, due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holders of Notes of this series shall be conclusive and binding upon such Holders and upon
all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture, the Holders of the Notes of this series shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, the Holders of not less than 25% in aggregate principal amount of the Notes of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of such Notes at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes of this series are exchangeable for a like principal amount of Notes of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This Note is a Global Security and is subject to the provisions of the Indenture relating to Global Securities, including the limitations in Section 305 thereof on transfers and exchanges of Global Securities.
This Note and the Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Exhibit 5.1
767 Fifth Avenue
New York, NY 10153-0119
+1 212 310 8000 tel
+1 212 310 8007 fax
October 30, 2012
C. R. Bard, Inc.
730 Central Avenue
Murray Hill, New Jersey 07974
Ladies and Gentlemen:
We have acted as counsel to C. R. Bard, Inc., a New Jersey corporation (the Company), in connection with the offer and sale by the Company of $500,000,000 aggregate principal amount of the Companys 1.375% Notes due 2018 (the Notes) pursuant to the underwriting agreement, dated as of October 25, 2012 (the Agreement), between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co. and Wells Fargo Securities, LLC, as representatives (the Representatives) of the several underwriters named therein. The Notes will be issued pursuant to the Indenture, dated as of December 20, 2010 (the Base Indenture) between the Company and Wells Fargo Bank, National Association, as Trustee (the Trustee), as supplemented by a first supplemental indenture thereto, dated as of December 20, 2010 and a second supplemental indenture thereto, dated as of October 30, 2012, in each case between the Company and the Trustee (as so amended and supplemented, the Indenture).
In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Companys Registration Statement on Form S-3 (File No. 333-171166) filed with the Securities and Exchange Commission (the Commission) on December 15, 2010 (the Registration Statement), (ii) the Prospectus, dated December 15, 2010 (the Base Prospectus), which forms a part of the Registration Statement, (iii) the Prospectus Supplement, dated October 25, 2012 and filed with the Commission pursuant to Rule 424(b) under the Securities Act of 1933, as amended, on October 26, 2012 (together with the Base Prospectus, the Prospectus), (iv) the Agreement, (v) the Indenture, (vi) executed copies of global certificates representing the Notes, and (vii) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to the opinion
October 30, 2012
Page 2
set forth herein that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company. We have assumed (i) the valid existence of the Trustee, (ii) that the Trustee has the requisite corporate power and authority to enter into and perform its obligations under the Indenture, (iii) the due authorization, execution and delivery of the Indenture by the Trustee, and (iv) that the Indenture constitutes the legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms. We have also assumed (i) the valid existence of the Company, (ii) that the Company has the requisite corporate power and authority to enter into and perform the Notes, (iii) the due authorization of the Notes by the Company and (iv) the due execution and delivery of the Notes by the Company, in each case under the laws of the State of New Jersey.
Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that, upon the due authentication and delivery thereof by the Trustee, the Notes will constitute valid and binding obligations of the Company, enforceable against it in accordance with their terms and will be entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors rights and remedies generally, and subject to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
The opinions expressed herein are limited to the laws of the State of New York and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the incorporation by reference of this letter as an exhibit to the Registration Statement and to the reference to our firm under the caption Legal Matters in the Prospectus.
Very truly yours, |
/s/ Weil, Gotshal & Manges LLP |
Exhibit 5.2
Law Offices | October 30, 2012
| |||
500 Campus Drive Florham Park, NJ 07932-1047
(973) 549-7000 (973) 360-9831 fax www.drinkerbiddle.com
A Delaware Limited Liability Partnership
CALIFORNIA
DELAWARE
ILLINOIS
NEW JERSEY
NEW YORK
PENNSYLVANIA
WASHINGTON D.C.
WISCONSIN
|
C. R. Bard, Inc. | |||
730 Central Avenue | ||||
Murray Hill, New Jersey 07974 | ||||
Ladies and Gentlemen: | ||||
We have acted as special counsel to C. R. Bard, Inc., a New Jersey corporation (the Company), in connection with the issuance and sale by the Company of $500,000,000 aggregate principal amount of 1.375% notes due 2018 (the Notes), pursuant to the Underwriting Agreement dated October 25, 2012 between the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman, Sachs & Co., and Wells Fargo Securities, LLC as representatives of the several underwriters named therein (the Underwriting Agreement). The Notes will be issued under an indenture (the Base Indenture), dated as of December 20, 2010, as supplemented by the First Supplemental Indenture, dated as of December 20, 2010 and the Second Supplemental Indenture, dated as of October 30, 2012, in each case between the Company and Wells Fargo Bank, National Association, as trustee (the Trustee) (as so amended and supplemented, the Indenture). | ||||
We have examined originals, or duplicates or certified or conformed copies, of the Registration Statement, the Base Indenture, the First Supplemental Indenture, and the Second Supplemental Indenture which have been filed, or are being filed on the date hereof, with the Commission, the Notes, and the Underwriting Agreement. We have also examined the Companys Certificate of Incorporation, as amended and restated, and By-laws, as amended and restated, and originals, or duplicates or certified or conformed copies, of such corporate and other 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. | ||||
Andrew B. Joseph Partner responsible for Florham Park Office |
In rendering the opinion 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 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, we are of the opinion that the Company (a) is validly existing as a corporation in good standing under the laws of the State of New Jersey, (b) the | ||||
Established 1849 |
October 30, 2012
Page 2
Company has all requisite corporate power and authority to execute and deliver the Notes and to perform its obligations thereunder, and (c) the issuance of the Notes in accordance with the provisions of the Indenture upon payment of the consideration therefor as provided in the Underwriting Agreement have been duly authorized by all necessary corporate action and, to the extent governed by New Jersey law, have been duly executed and delivered.
We do not express any opinion herein concerning any law other than the law of the State of New Jersey.
We hereby consent to the filing of this opinion letter as Exhibit 5.2 to the Companys Form 8-K filed on October 30, 2012 and to the use of our name under the caption Legal Matters in the prospectus included in the Registration Statement, as supplemented by the prospectus supplement dated October 25, 2012.
Very truly yours, |
/s/ Drinker Biddle & Reath LLP |
!(%4
M8@/$4$10*&5296.4FVE(#OE'RKA?DM\+BOR*8[7$R(Q]78]7%&UDPAIDQ$/7
MNTI?I];ZW#ZQSQ9$G171W9D#!)2W1L,2+"Z\10&AH`BXA8::HN&3BX%-PARE-%I%.'5$KN:L8"
MBC!J#B5`!J:DF5(XH`A,%)#Q-V<-%S?D4\P]E_'N]6!A*VT]X,@[FY))53G;
M2`6::6YP>%[02H:4*%084X+"7!4X2%Q>2R&U$B2*U"DPLVE:%[H=^G.M':=D
MB.\%O-9:C.[(F<8 >M/2'M>ZFUA
M'(NF^U'/>8;U--RGEGW#6;^S /MX^B_G_C^/H3M.\GB[VL]
M:M7,^P'<79'N2:[MUUKLT"/I/E6H^^;.6:?EW!_L@_)N^@[>X$B(^SOJAG
MZ#]M/6FL%R#I'M=U1S#A';W)^3?==9P.)MX/S[F]^[;Z%[;S!-\RZ-Z9=NX/
M3'1VG#SWK+E73.EXQ>YS;G?VO3\?I1*M*K*&4.H
M!UV#!6E?C2M/5/,8'/+O?;RNXF^0BZ=DK4^06\#]'97:ZX^7D3C#)6L7;[=V
MP)
4/7=;A]!\_Y#Q"NHNX
M6[]QY1QMS6\R^CO;O%^.ST&L;P)ENO:KU,3VE]OO66B6:?MUVYZFY=N@YAP>
MFONNBW-WC;OR;-F]^[T#G>3F0>TG@3?EGMTTNCKW'T';3@
1%8*6*MK;OK`9`7$0'3W M%D\>3[KUY$S[9:+;C<*FT<=565C T1^ M-I%*\UZ/QG!0"D1:A8,.0DE&C"//J&2P>9N;VZO$L?IH(YE5T7:*%CT7D3MU MW)-!XD:>"\M$CBMC.))7CY)U)=0*\O'P_=H/-Z-QZUV!H76RT-1MAI`X-T>\ MEFJ5/6(&`O4J@JTT3S9# X)B0CS@`_P`0.<9T M?;';U[B\K=6F=MJ%\3 'CJ3=@W8U?E#[;+`RVLWJ%5$N+NSW(O51Z7M,9K1Y8AX"Y,LNF M+Q'D$4:GHDP0<`1B6^Y/R8#MECZP=6+E[?S-ND4TD51=*#$H>,LRMT(127XT MWJ131U+NVD=@CCG'LWI]M=81]W[U"BB:UCIO=C!7AE(Q9AG-I-UCM,IKY\BD M)E2G**,S$V/S%A97MSC#\X<)DJY$G4IS56<$8%WLX!ZZ1]M9Z62!;:W>9[DD M1M'1T 0+Q%37:@\]0R^;7874;8W0K<`VE;>:I M9L7JO#*7G@G.OGV6LLBKUFLFS88W-_O'EL^TM:]#)&9U4IU2`1RD1`Q9">44 M<7CI]!_+K&Y_"]Q6*Y""1,;>--'\8%'>.-C7B=_A/CL/NKK.=PW-E>XN=87# M2((W%/\`5M^GKK9K/C&(KLWX]Q^,:1'ALM98T/!NU7M33%1(J1)UA51DE3,I M'>D8*>'2`PR4%.?;"P*`DHW]P5J!X)[V`<@YVTZS8G)Q=W@BR2-OHVD'&7WN M9H(=@60[\Z50`;G3R*1/:MBR/JV"^Z%W7AM7GY"O3Q^^FI.= L,CE\.O]NC)K(F44*UF>2V-A2&TI$'1.SLQ)+,WJ!EF@3#/7*,K5G9Z\ MG9R$6*R]CE'6QLI,>;>=K>JE8R&N%K7W'&]30&I`&PKL-%[2>"L[_4>Y$LG0 M[>V:?*#U/IZ>N@VL/::-V!YBM!ZLK&U[4(39IS:QTMBG'AIL^OX>XI4<*:U5 M:SE3#II'(RW2-4-:>Z%)G--[LL."<`SD`BPY]:&UPLMGV'D[^[A@WN;<12JT M;N26_FKR1FI3X"0>-*_=JI->(^>MHHW)4Q2U'Q=?AIX4\/'2_F7W/JN'>/[9 MHB"7M.8+8Q;.=&H!8%3I+'0M>+1:W]O)_L&&WXI'E4(0N+@>2>WK4)SJ2,0L MF)Q9`=CIQ'L'M^]N^Y[5I+>*6U9_C1VC+<2I^(1,P?X?F!`-"*Z?N"[ABQ4X M5N,G'K]XVTKK;9 '"=IIG(6= M([*@,T71N".-%*5Y_.,",P88,>`YSC#9.QAF[,M)X(4^NDR<\0*)_,D50I4, M0>34+T&W34[25_[K+S?^5]-$?^[?[]2;P?:N@[$LD%.QF?$9LY3"$]EM,)D# M#*(>^R:N52O"$F=0]++V-CQ,8IA:+!1BUK$K))$(.#!`Z@\Y&?"Y6TM1>S14 ML>93DI#`..J-Q)X,*_*U"?#11+NVDD]E7!EI6G3;SU"/:CT_2JT]GM6YVWCS MN79MTC=]-=B1RH#7%62+)UC.XQV,L$T(6%!@S]4#$E/-6QM*`:]W.5=`B#35 M&!#'ZL:D-\EL'BDO\<^R1$T?27J;5QK99 S[F>V[DLA'3C) HAW]%DM$<$( GKYZ], M<[W%UUJ,9B:T;288S]HE,9KV7R/+?(UE?PRQ)9]O+98C,I^WLRR'0EW=%3HG M"20[KD9@<*2.YTY.+Z_&[7`9>^8+8P,ZLC.JCYV1:EF1">3@?\H.W(_A.M>; MN"+X96"U(&WR\J;BOGZ:K9>Y^K]06)#*HLRWX]$)O/9(TPV,H7%*^FLQTP?\ MEX88H[3!"T*H=&I(^=XO*)"YKT:E5@P&2@"P,'5"SP.8OK=KRR@=XD1F)'4H MNS.$)YLBG8L`0#M7337UG;R*DLH5F-!ZD^'EH=O_`&4:H6#>&P>HR.>RV-V) M5@X_73L_)X_+V;"^=3]M>RPMD#?4+(I,)714:8CJ=C.PC]V>'*8PX)1@\%'[ M4R]ICK7.21Q-93@N`64GBI_$I.X8U^$;@=0.FJAREF]S)8JU+F)?WCSZ#[=! MOXQ_(K0-<:!::-VT^RAH+7L< 1N MP<)RB2W5P2&&!R#H#@'&,'N\.ULG=]T7_P#9[9?9AXM1.``41JS<4K7COL0# MOMUU1PN2ABQT"7<@]U^5/'HQ_%T.I\OC_DQ_H]>=\CY'6EV\]>=F*[3T"Q^? MB\E[Q9L<;8\\Z"UO53=,UJ@Q/!%5D1JUW*8/4)+FQA(8OE_11UU*4")]USS@ M9>/S0"!CU"7"91_RSM^$3\SD7E`H*^W[7'W*5KU]/766BO+=>Y9JL:&W3[.M M?T]=M.AN'$!^1S9K3*)P-O7BU3TWO-+MCL'?[ZW+&.M9#(J\:E(:]J>MGIX3 MH`3Q `N!VIA\A-=D'.7UO]+!$""ZK)_5E MD`^0D4]L?BJ?#?72_A.5OH$@K]+!+[CN=JD?@`\:^/\`PTS7C/D%()_&SN:^ M*C(:B=6^\/(#,7DQW:R$3TWMD\G%B)(2\@0.J(IU3MTMB+@D(;1$%]I8G/P2 M5UY&(&2?>"9`]UXV.LC+]+9)\PI5%2J$@T^'UZ4J=<\5[7]HN&(WYS>&^A7\ M<,XA.-C/"(B-=D1#K&/%M<=<2,"M&I2*(U/G"05T6U0=^.5I2OL4I798G'"9 MO4B*4G8),R6#.!8ZCW>$-R,7W%LW&3+0M\P-1P)KL=^O4=/NU1Q:TN\<:;+: M./L/Z#]*Z9O:.<5^'8'?]#'Y@&-ADGES\9DP:9"Q-AR[LI8G"F!NLBSF$H3> MJ:GIO@+VUGFNB[I.0D*DF0J1?'@5W`I>"QQ [FO!;BPN%_GQS+)L M-IXU/)B#Y@;M7K^S12;=7%XX+XT,WAN36"-&22V))IC:=9++(7UO9Z26,14J M;REC'2CV_6$V$+PRQ_EHBQI8X@$K5>Z3&*.V66'O9"]OX[NO#]TX['91F2RC MOHI!&KKQ)'S3(J'CQ";\S3K0U.VKM_<8J[QMQ=VH)F:W9.5""*BG'?SU9Y6[ M&H-I\$#S$($Z0]5*K/H;7&$0.,0M$2XRZ5'Q.4UTN<&HMG9TI[\>3%B&]P,5 M^X+P%$8$W!N0&"%C/7LNSR,WYDEYU 25WB%MT?I?*_&RKP\[_CL6DE]3R37=$:DD+37"I`F! M:0+Z<(\E3L[-49#(7C#BCEN2TX%0```5W.[CUT[5CFLLEDXNYQ3M`\:^/7QT'LBG+VQVQM M!=<98W:TZ;HWSA5SLALG#*[9'.0NDAHELHV/0\NX8]%D"0:V?PFN+:!AS-$B M`I*PK0%G"YR3U8/<(IL?96$A"7UQ@'M[=G8`)*90WME@?A=H]A7S(T/EDFC> M:Y92T,615I`-ZC@%JH_A!-=^IT<&\FP,'V'W'T8F&K$\`XO4JU?\BE?U= )W(Z^&B&4N%N;^V-DU)#%.JO0[NR*%7H/Q$$ M>NF/G&SE037_`.?^V-5#8O+HOLM2.J[75-P:Z/%>2X,_@UD5^X,2*0RAZ0*& M/"8UB<)`W">B7T!QB=4)0$8#3%0L%YO6V'O;7\S;?*+(HQ$]Z&CG1UXO'(*A M5:NYX'@1]M=M59+F%NV)+-^?U<47&1""6#`CD3Z$]#ZZ9#;S,@V9M;R#Q[5] M2.SI3(O'=X_OM43C(UB9=;C=2URO,]NZHHLI.)28=96.!AR!6UDBRK$6?@D0 M,9'D/HKV\L.%Q^,DS8,$2Y:\`9PK+'[D"I$[`F@7W"/B\`*C37Z37,EP+.HE M$%N?]05BS+]XVU,SKO Y\';2X_(2@8UY`Q" MR(8YB"0LB*I^.GB2*J.NCN.NL9>NL]JI%T%8$$$<-]QY;GRZZ8>EK6UBO#4& M(Z4[(1JU(=M3!##6Q;$4%=3=9 Z;A28%/GKSC=&M#- ]?M_(;O%7C(R;L3+6BRTU97&?'T3G'+Z95]>& M0:'E5,2R-YC2UVH8\JTP']*C)PYK7(XQ4(T9?T:/L^![GNK'0J`5^LA+5IQX M)(KOR)V`"J3OMH=ES3%W`\XF'[-.3K/IG5.UVB.D=]Z6V=&M VY/$+S+))"5/PLBD$4^$C8T.@-KCX[S&6MW8O[62A MA4*QZ;CB0XWJ":Z9[025ZXPRJK+T>\K]*2A+N4IO&U)E-*_EL"M6QHAM`HLV M=JYZQS"K1Q5&]0BPTZM:K*2D`YP-/[(@8\@"#(B[7=<&3FOHNYNR+A!@A;QH MK1LL;6RHOM%)`2'3:I)_%RWURQ3VL=O)B O"C7/;RA)3(Z>35A)I#9=F-2:W:>FCYLTX/;.@6,+!"% MC?@WH4(LN"H9C;D!RX"R!]NT,3+;9FRR-U<"XM[JQG02E@(XS[<@$`!W9J MT(J%!KLO4ZAE;I;BQN+2!#"8Y$HIKR(!!)KN*4%!HX:"VDHFO/)3Y/G2?6.U MPQAO&M=-;/I^0R@AU96"QX4ST@\LCF\1)T<$)"5V^TN"D!1Y!>(O)!+=)(JD ,S[2QQLNQ^4+3 M]==`F&4PH_\`^7M/%UBI&=+4+3AA21,Y`J'+T<]3;7&R]"W)XSE'F0$2-/'\ M? (%_>8'^]ZP/]HS'^Q)^I?\`/1[WH?XC^H_Y:D#' M]D[..Y]J]OU9Z>OVG9ZNK//'5^#JZOG^_P!8[>OC71;;61_*[7\OL]O_`%>U MVNG_`&.WT?YN/3:?28O:]6>KV_5TE]75V^KIZOR>>?CT]?T_O^7I>'II:K_3 M O]/GO?#HZ_\`B_+CGX^EI:H'VO`>GV_3VS.CI[?':Y_-Z>/AV^?J MX^'/S]-MXZ6JBPGY(ZLD\_'VW/;YYZ,\]CG'//:Y^G^'T^EJTOVG3CM>WZ.\ M+CH[73[CD77QT_#O<\\_Q?/TJ^6EI`7VON_B^W][@?U>W[O3U9[GS_%QU_5^ M_P"?ISR]=+?5R/[=^?[#*+Z_ZGV?M_U.,\9.[/\`'QS]7Q]-OXZ6NP'L<@[? M:Y[?X.CHY[/./IX_E<\?+X<^D/32TB5A!U)^SE)U=HWVG;['/9Y+[WMNC'/: MZNGKZ?P\\<_L]/OI:X;[#^H[WM/D3[ON=GY?\O[GJ_9S]'5^WY>F^S2WTM^1 MU!_2Z^L?1]'7W.,]?3^WKZ?GQ\>/3FOC72W^[7"NQR;V.USW1=_M='Z_`>ON M]'\[IXYY_%QQZ;2TAC[=[\?3[+[GV,=?'8]_[;G''5Q_4=CJX^?X>?2TM"CN M16^KUL5TU079R6PR#)'N1)BZQELAFS#7\L8+%`7G+0XUE(G=<@4ER],+@0"$ MV3 ;M<-L% MWCN.`H2;2A:UL/\`>/J1)@(3%J(P7?,#G.<&9%W/3&M-^FEOIY-O9O8M=P:O M9;7#/.'U4V7G3N9XT5O"7"Q)DKJ,Z9MY5F%ML69&MX?W!+B/"%E2)"0)063C M(@YQG'/HMAK>TNKF2"[>-*V\O!G8*HDX$I\3$`?%3KJI>//'$KPAC21*@`D\ M>0Y;#TZ^FB;0*D:]&0N`4-.%:@2+!D."4:%P)3*2N\22YHE0"U20XH(Q!&4< M$(BQX$'.,9QG'H+(""RQTJ&W(W!(._3S\-6F*D$M\AZU\]"/J_8-C2*;;-PV MWV.?(G:&[!3S_MH\3"OW*-Q=UI1QPU9@9<"EY[0A8YFW)>PK[PDIZE00(6,* M,XZ@ Y(F(:A-<=A)D1G*YQ>IBK=(=.R$ M$01/J%KRNR%OR