Form 8-K CARLISLE COMPANIES INC For: Nov 13

November 16, 2017 9:11 AM

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported):  November 13, 2017

 

CARLISLE COMPANIES INCORPORATED

(Exact name of registrant as specified in its charter)

 

Delaware

 

1—9278

 

31—1168055

(State or other jurisdiction
of incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)

 

16430 North Scottsdale Road, Suite 400
Scottsdale, Arizona

 

85254

(Address of principal executive offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code:  (480) 781-5000

 

N/A

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

o  Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o

 

 

 



 

Item 8.01. Other Events.

 

On November 13, 2017, Carlisle Companies Incorporated (the “Company”) entered into an Underwriting Agreement, dated November 13, 2017, with J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, as representatives of the underwriters named therein, in connection with the public offering and sale of $400,000,000 aggregate principal amount of the Company’s 3.500% Notes due 2024 (the “2024 Notes”) and $600,000,000 aggregate principal amount of the Company’s 3.750% Notes due 2027 (the “2027 Notes” and, together with the 2024 Notes, the “Notes”) and entered into a related Pricing Agreement, dated November 13, 2017, with J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, as representatives of the underwriters named therein.  The Notes were registered for offer and sale by the Company’s Registration Statement on Form S-3 (Registration No. 333-221410).  In connection with the public offering and sale of the Notes, the Company filed a prospectus dated November 8, 2017 and a prospectus supplement dated November 13, 2017 (collectively, the “Final Prospectus”) with the Securities and Exchange Commission pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended.

 

Interest on the Notes is payable semiannually on June 1 and December 1 of each year, commencing May June 1, 2018, to holders of record on the preceding May 15 or November 15, as the case may be.  The 2024 Notes will mature on December 1, 2024 and the 2027 Notes will mature on December 1, 2027.  The Notes are the Company’s senior unsecured obligations and will rank equally in right of payment with all of the Company’s existing and future senior unsecured indebtedness.  The terms of the Notes are further described in the Final Prospectus, which description is hereby incorporated herein by reference.

 

The Notes are expected to be issued on November 16, 2017 pursuant to the Indenture, dated as of January 15, 1997, between the Company and U.S. Bank National Association (as successor to State Street Bank and Trust Company, as successor to Fleet National Bank) (the “Trustee”).

 

The descriptions of the Underwriting Agreement and the Pricing Agreement are qualified in their entirety by the terms of such agreements.  Please refer to such agreements and the forms of 2024 and 2027 Notes, each of which is incorporated herein by reference and filed with this report as Exhibits 1.1, 4.1 and 4.2, respectively.

 

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Item 9.01. Financial Statements and Exhibits.

 

(d)                                 Exhibits.

 

Exhibit
Number

 

Description

1.1

 

Underwriting Agreement and Pricing Agreement, each dated as of November 13, 2017

 

 

 

4.1

 

Form of 3.500% Notes due 2024

 

 

 

4.2

 

Form of 3.750% Notes due 2027

 

 

 

5.1

 

Opinion of Dorsey & Whitney LLP regarding the Notes

 

 

 

23.1

 

Consent of Dorsey & Whitney LLP (contained in Exhibit 5.1)

 

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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.

 

 

 

CARLISLE COMPANIES INCORPORATED

 

 

 

 

 

 

By:

/s/ Robert M. Roche

 

Name:

Robert M. Roche

 

Title:

Vice President and Chief Financial Officer

 

 

DATE: November 16, 2017

 

 

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EXHIBIT 1.1

 

CARLISLE COMPANIES INCORPORATED

 

Debt Securities

 

Underwriting Agreement

 

November 13, 2017

 

J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179

 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

One Bryant Park

New York, New York 10036

 

SunTrust Robinson Humphrey, Inc.

3333 Peachtree Road, 11th Floor

Atlanta, GA 30326

 

Wells Fargo Securities, LLC

550 South Tryon Street, 5th Floor

Charlotte, NC 28202

 

As Representatives of the
Underwriters referred to herein

 

Ladies and Gentlemen:

 

From time to time Carlisle Companies Incorporated, a Delaware corporation (the “Company”), proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) such aggregate principal amount of the Company’s debt securities (the “Securities”) as specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the “Designated Securities”).

 



 

The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the “Indenture”) identified in such Pricing Agreement.  As used herein, “Significant Subsidiaries” shall mean those subsidiaries of the Company named in Annex II hereto, and each other subsidiary of the Company, which at the time of the relevant Pricing Agreement is a “significant subsidiary” as defined in Rule 405 of Regulation C under the Securities Act of 1933, as amended (including the rules and regulations promulgated thereunder, the “Securities Act”).

 

1.                                      Particular sales of Designated Securities may be made from time to time to the Underwriters of such Designated Securities, for whom the firms designated as representatives of the Underwriters of such Designated Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”).  The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives.  This Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities.  The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein.  Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor.  The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities.  A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted.  The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.

 

2.                                      The Company represents and warrants to, and agrees with, each of the Underwriters as of the date hereof, as of the time at which sales of the relevant Designated Securities were first made (the “Initial Sale Time”) and as of the Time of Delivery (as defined below) (in each case, a “Representation Date”) that:

 

(a)                                 The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-221410), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of debt securities, including the Securities, in accordance with Rule 415 under the Securities Act.  Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness in respect of the relevant Designated Securities under the Securities Act, including any required information deemed to be a part thereof at the time of effectiveness

 

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pursuant to Rule 430B under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), is called the “Registration Statement.”  From and after the filing, if any, of a registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act (the “Rule 462(b) Registration Statement”) relating to the relevant Designated Securities, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.  The term “Preliminary Prospectus” shall mean a preliminary prospectus supplement that describes the relevant Designated Securities and the offering thereof and is used prior to filing of the Prospectus relating to such Designated Securities, together with the Base Prospectus.  The term “Prospectus” shall mean the final prospectus supplement relating to the relevant Designated Securities, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time that the Pricing Agreement related to such Designated Securities is executed and delivered by the parties thereto.  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; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement.  All references in this Agreement to the Registration Statement, any Rule 462(b) 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”).

 

(b)                                 The Company meets the requirements for use of Form S-3 under the Securities Act.  The Registration Statement has become effective under the Securities Act 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 (the “Trust Indenture Act”).

 

(c)                                  (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 Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Initial Sale

 

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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 Initial Sale 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.

 

(d)                                 (i) At the determination date calculated pursuant to Rule 164(h) under the Securities Act in respect of the offering of the Designated Securities, the Company was not an Ineligible Issuer (as defined in Rule 405 of the Securities Act).

 

(e)                                  At the respective times the Registration Statement and any post-effective amendments thereto (including the filing of the Company’s most recent Annual Report on Form 10-K with the Commission and the filing of the Prospectus with the Commission) 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 rules and regulations of the Commission thereunder and the Trust Indenture Act and the rules and regulations of the Commission thereunder, 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 Time of Delivery, 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 (i) that part of the Registration Statement which constitutes the Statement of Eligibility on Form T-1 of the Trustee under the Trust Indenture Act (the “Form T-1”) and (ii) 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 Underwriter through the Representatives expressly for use therein.

 

Each preliminary prospectus and prospectus filed as part of the Registration Statement, as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, and in each case relating to the relevant Designated Securities, complied when so filed in all material respects with the Securities Act and the rules and regulations of the Commission thereunder, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the relevant Designated Securities 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 or otherwise by the Securities Act.

 

(f)                                   The term “Disclosure Package” shall mean (i) the Preliminary Prospectus with respect to the relevant Designated Securities, (ii) the issuer free writing prospectuses

 

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as defined in Rule 433 under the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in Exhibit A to the relevant Pricing Agreement 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 with respect to the relevant Designated Securities.  As of the Initial Sale Time, each of (x) the Disclosure Package and (y) the Disclosure Package, when read together with any electronic roadshow, will 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.

 

(g)                                  The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (i) at the time they were, or hereafter are, filed with the Commission, complied or will comply, as the case may be, in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder and (ii) when read together with the other information in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Time of Delivery, did not, and 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.

 

(h)                                 No Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of the relevant Designated Securities or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence, included, includes or will  include any information that conflicts or will conflict with the information contained in the Registration Statement, including any document incorporated by reference therein that has not been superseded or modified.  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 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.

 

(i)                                     The Company has not distributed and will not distribute, prior to the later of the Time of Delivery with respect to the relevant Designated Securities and the completion of the Underwriters’ distribution of such Designated Securities, any offering material in connection with the offering and sale of such Designated Securities other than the Preliminary Prospectus relating to such Designated Securities, the Prospectus relating to such Designated Securities, any Issuer Free Writing Prospectus identified in Exhibit A to the applicable Pricing Agreement,

 

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any electronic roadshow furnished to the Representatives before first use, or otherwise consented to in writing by the Representatives, or the Registration Statement.

 

(j)                                    Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus; and, since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development which could reasonably be expected to result in a material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus.

 

(k)                                 The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Prospectus; and the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to so qualify would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole; and each subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as presently conducted, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to so qualify would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole.

 

(l)                                     The Company has an authorized capitalization as set forth in the Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and the Company owns, directly or indirectly, all of the outstanding shares of capital stock of each Significant Subsidiary, free and clear of all liens, encumbrances, equities or claims.

 

(m)                             The Securities have been duly authorized, and, when the relevant Designated Securities are issued and delivered pursuant to this Agreement and the Pricing

 

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Agreement with respect to such Designated Securities, such Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles, entitled to the benefits provided by the Indenture, which will be substantially in the form filed as an exhibit to the Registration Statement; at the Time of Delivery for such Designated Securities (as defined in Section 4 hereof), the Indenture will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture conforms, and the Designated Securities will conform, in all material respects, to the descriptions thereof contained in the Disclosure Package and the Prospectus.

 

(n)                                 The issue and sale of the relevant Designated Securities and the compliance by the Company with all of the provisions of such Designated Securities, the Indenture, this Agreement and the applicable Pricing Agreement, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (except for such conflicts, breaches, violations or defaults that would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole), nor will such action result in any violation of the provisions of the Certificate of Incorporation or By-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or any Pricing Agreement or the Indenture, except such as have been, or will have been prior to each Time of Delivery, obtained under the Securities Act and the Trust Indenture Act 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 Designated Securities by the Underwriters.

 

(o)                                 The statements set forth in each of the Disclosure Package and the Prospectus under the caption “Description of the Notes”, when taken together with statements set forth in the Base Prospectus under the caption “Description of Debt Securities,” and under the caption “Underwriting,” when taken together with the statements set forth in the Base Prospectus under the caption “Plan of Distribution,” other than, in each case, information contained therein provided in writing by any Underwriter through the Representatives expressly for use therein, insofar as they purport to describe

 

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the provisions of the laws, instruments and other documents referred to therein, are accurate, complete and fair in all material respects.

 

(p)                                 Neither the Company nor any of its subsidiaries is (i) in violation of its Certificate of Incorporation or By-laws or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except, in the case of clause (i), with respect to the Company’s subsidiaries which are not Significant Subsidiaries, where such violation would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole, and except, in the case of clause (ii), where such default would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole.

 

(q)                                 Otherwise than as set forth in the Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, (i) would individually or in the aggregate have a material adverse effect on the current consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole or (ii) could individually or in the aggregate reasonably be expected to have a material adverse effect on the future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole; and, to the best of the Company’s knowledge, other than as set forth in the Disclosure Package and the Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.

 

(r)                                    The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).

 

(s)                                   The financial statements together with the related notes thereto incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly 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 have been prepared in conformity with generally accepted accounting principles as applied in the United States applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.  The selected financial data and the summary financial information included in the Preliminary Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement, the Preliminary Prospectus and the Prospectus.  The interactive data in eXtensible Business Reporting

 

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Language incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus has been prepared in accordance with the Commission’s rules and guidelines applicable thereto in all material respects.

 

(t)                                    Ernst & Young LLP, who have expressed their opinion with respect to the Company’s audited financial statements incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, are independent public accountants as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder and is a registered public accounting firm within the meaning of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”).

 

(u)                                 Deloitte & Touche LLP, who have reviewed the Company’s unaudited financial statements incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, are independent public accountants as required by the Securities Act and the Exchange Act and the rules and regulations of the Commission thereunder and is a registered public accounting firm within the meaning of the Sarbanes-Oxley Act.

 

(v)                                 The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or approvals or failure to comply with the terms and conditions of any such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole.

 

(w)                               The Company is in compliance in all material respects with the provisions of the Sarbanes-Oxley Act, including Section 402 related to loans and Sections 302 and 906 related to certifications.

 

(x)                                 The Company maintains (i) internal controls over financial reporting as defined in Rule 13a-15 under the Exchange Act and (ii) a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

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(y)                                 Except as disclosed in the Disclosure Package and the Prospectus (including any document incorporated by reference therein), since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

(z)                                  Neither the Company nor any of its subsidiaries, nor any director, officer or employee of the Company or any of its subsidiaries nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under  the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any  rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit.  The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.

 

(aa)                          The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business , the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-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 Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

(bb)                          Neither the Company nor any of its subsidiaries,  directors, officers or employees, nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department

 

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of the Treasury  or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council , the European Union, Her Majesty’s Treasury , or other applicable sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject  or target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Syria and Crimea (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions.  For the past five years, the Company and its subsidiaries have not knowingly engaged in, and are not now knowingly engaged in, any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

 

3.                                      Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Disclosure Package and the Prospectus.

 

4.                                      Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in the form specified in such Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least thirty-six hours’ prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire or interbank transfer to an account specified by the Company in immediately available funds, all in the manner and at the place and time and date specified in such Pricing Agreement or at such other place and time and date or by such other method of payment as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Designated Securities.

 

5.                                      The Company agrees with each of the Underwriters of the relevant Designated Securities:

 

(a)                                 The Company will comply with the requirements of Rule 430B under the Securities Act and will promptly notify the Representatives with respect to the relevant Designated Securities, and confirm the notice in writing, of (i) the effectiveness 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, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary

 

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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 relevant Designated Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, to the extent any of the circumstances described in clauses (i) through (iv) above occur prior to the later of the Time of Delivery and the completion of the Underwriters’ distribution of the relevant Designated Securities.  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 best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof as soon as possible.

 

(b)                                 During such period beginning on the date of the Pricing Agreement applicable to the relevant Designated Securities and ending on the later of the Time of Delivery for such Designated Securities 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 relevant Designated Securities by any Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus (including any amendment or supplement through incorporation by reference of any report filed under the Exchange Act), the Company shall furnish to the Representatives for review a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement to which the Representatives reasonably object.

 

(c)                                  Promptly from time to time to take such action as the Representatives may reasonably request to qualify the relevant Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of such Designated Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction.

 

(d)                                 The Company will deliver to each Underwriter of the relevant Designated Securities, without charge, as many copies of the Preliminary Prospectus and 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 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 or otherwise under the Securities Act.

 

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(e)                                  The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations promulgated thereunder, so as to permit the completion of the distribution of the Designated Securities as contemplated in this Agreement, the relevant Pricing Agreement and in the Registration Statement, the Disclosure Package and the Prospectus.  If at any time during the Prospectus Delivery Period with respect to the relevant Designated Securities, any event or development shall occur or condition shall exist as a result of which the Disclosure Package or the Prospectus, as then amended or supplemented, would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement such Disclosure Package or the Prospectus, or to file under the Exchange Act any document incorporated by reference in such Disclosure Package or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Representatives it is otherwise necessary to amend or supplement the Registration Statement, such Disclosure Package or such Prospectus, or to file under the Exchange Act any document incorporated by reference in such Disclosure Package or such Prospectus, or to file a new registration statement containing such Prospectus, in order to comply with law, including in connection with the delivery of the Disclosure Package or Prospectus, the Company agrees to (i) notify the Representatives of any such event or condition and (ii) promptly prepare (subject to Section 5(b) and Section 5(j) hereof), file with the Commission (and use its best efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, such Disclosure Package or such Prospectus, or any new registration statement, as may be necessary in order to make the statements in such Disclosure Package or such Prospectus as so amended or supplemented, in the light of the circumstances then prevailing or under which they were made, as the case may be, not misleading or so that the Registration Statement, such Disclosure Package or such Prospectus, as amended or supplemented, will comply with law.

 

(f)                                   To make generally available to its security holders, as soon as practicable,  an earnings statement of the Company and its subsidiaries covering a period of at least 12 months and otherwise satisfying Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158).

 

(g)                                  During the period beginning from the date of the Pricing Agreement for the relevant Designated Securities and continuing to and including the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after such Time of Delivery and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives.

 

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(h)                                 Promptly upon entering into a Pricing Agreement with respect to the relevant Designated Securities, the Company will prepare a final term sheet containing only a description of such Designated Securities, in a form approved by the Representatives, 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 shall be a Permitted Free Writing Prospectus (as defined below) for purposes of this Agreement and the applicable Pricing Agreement.  The form of Final Term Sheet for the Designated Securities shall be attached to the applicable Pricing Agreement as Exhibit A.

 

(i)                                     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 relevant Designated Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that would be required to be filed by the Company with the Commission or retained by the Company under Rule 433 under 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 attached as Exhibit A to the applicable Pricing 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) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.  Each Underwriter agrees that, without the prior written consent of the Company, it shall not use any free writing prospectus in respect of the relevant Designated Securities other than (A) any Permitted Free Writing Prospectus, or (B) any free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433 under the Securities Act, and (b) contains only (i) information describing the preliminary terms of the relevant Designated Securities or their offering, (ii) information permitted by Rule 134 under the Securities Act, or (iii) information that describes the final terms of the relevant Designated Securities or their offering and that is included in any Permitted Free Writing Prospectus (it being understood that the Company shall have no liability to the Underwriters or any other person in respect of any information included in a free writing prospectus described in clause (B)(b)(i) or (ii)).

 

6.                                      The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment

 

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Memoranda, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel for the Underwriters (not to exceed $25,000) in connection with such qualification and in connection with the Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any required review by The Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section.  It is understood, however, that, except as provided in this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.

 

7.                                      The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:

 

(a)                                 (i)                                     the Company shall have filed the Prospectus in relation to the applicable Designated Securities with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;

 

(ii)                                  the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433;

 

(iii)                               no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission; and

 

(iv)                              all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction.

 

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(b)                                 Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the Designated Securities being delivered at such Time of Delivery, the Registration Statement, the Disclosure Package, the Prospectus, as amended or supplemented, and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;

 

(c)                                  Steven J. Ford, Vice President and General Counsel of the Company, shall have furnished to the Representatives his written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that:

 

(i)                                     The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Disclosure Package and the Prospectus as amended or supplemented;

 

(ii)                                  The Company has an authorized capitalization as set forth in the Disclosure Package and the Prospectus as amended or supplemented and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;

 

(iii)                               The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to so qualify would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole;

 

(iv)                              Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as presently conducted; each other subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as presently conducted, except to the extent that the failure to so qualify would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole; and each subsidiary of the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to so qualify would not have a material adverse effect on the financial condition or results of operations of the

 

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Company and its subsidiaries, considered as a whole; all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and the Company owns, directly or indirectly, all of the outstanding shares of capital stock of each Significant Subsidiary, free and clear of all liens, encumbrances, equities or claims;

 

(v)                              No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Pricing Agreement with respect to the Designated Securities or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters;

 

(vi)                              The statements set forth in each of the Disclosure Package and the  Prospectus under the caption “Description of Notes,” when taken together with the statements set forth in the Base Prospectus under the caption “Description of Debt Securities,” and under the caption “Underwriting,” when taken together with the statements set forth in the Base Prospectus under the caption “Plan of Distribution”, (other than, in each case, information contained therein provided in writing by any Underwriter through the Representatives expressly for use therein, as to which such counsel need express no opinion), insofar as they purport to describe the provisions of the laws, instruments and other documents referred to therein, are accurate, complete and fair in all material respects;

 

(vii)                           The Company is not an “investment company” or an entity “controlled” by an “investment company”, as such terms are defined in the Investment Company Act;

 

(viii)                        The documents incorporated by reference in the Registration Statement, as amended, the Disclosure Package and the Prospectus (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom, as to which such counsel need express no opinion, and except to the extent that any statement therein is modified or superseded in the Disclosure Package and the Prospectus), when they were filed with the Commission or became effective complied as to form in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder;

 

(ix)                              The Registration Statement, as amended, the Disclosure Package and the Prospectus (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), as of their respective effective or issue dates, comply as to form in all

 

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material respects with the requirements of the Securities Act and the rules and regulations thereunder;

 

(x)                                 To the best of such counsel’s knowledge, other than as set forth in the Disclosure Package and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, (i) would individually or in the aggregate have a material adverse effect on the current consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole, or (ii) could individually or in the aggregate reasonably be expected to have a material adverse effect on the future consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, considered as a whole; and, to the best of such counsel’s knowledge, other than as set forth in the Disclosure Package and the Prospectus, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; and

 

(xi)                              The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, the Certificate of Incorporation or By-laws of the Company or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (except for such conflicts, breaches, violations or defaults that would not have a material adverse effect on the financial condition or results of operations of the Company and its subsidiaries, considered as a whole), nor will such actions result in any violation of the provisions of the Certificate of Incorporation or By-laws of any of the Company’s subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and

 

(xii)                           To such counsel’s knowledge, no amendment to the Registration Statement is required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Disclosure Package and the Prospectus as amended or supplemented or required to be described in the Registration Statement, the Disclosure Package or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required.

 

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Such opinion shall also state that such counsel has participated in the preparation of the Registration Statement, the Disclosure Package and the Prospectus and in conferences with officers and other representatives of the Company, with representatives of the Underwriters and with counsel for the Underwriters at which the contents of the Registration Statement, the Disclosure Package, the Prospectus and related matters were discussed, and that although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus (except for those referred to in the opinion in subsections (ii) and (vi) of this Section 7(c)), no facts have come to such counsel’s attention which lead him to believe that (i) either the Registration Statement or any subsequent amendments thereto (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), at the time the Registration Statement or such amendments became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), as of its date or at the Time of Delivery, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Disclosure Package (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), as of the Initial Sale Time (as specified in such counsel’s letter), contained an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(d)                                 (A) On the date of the applicable Pricing Agreement, the Representatives shall have received a letter dated such date, in form and substance reasonably satisfactory to the Representatives, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; and (B) at the Time of Delivery, the Representatives shall have received from Ernst & Young LLP a letter, dated as of the Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (A) of this paragraph (d), except that the specified date referred to shall be a date not more than three business days prior to the Time of Delivery, and such letter shall contain statements and information with respect to certain financial information contained in the Prospectus;

 

(e)                                  (A) On the date of the applicable Pricing Agreement, the Representatives shall have received a letter dated such date, in form and substance reasonably satisfactory to the Representatives, from Deloitte & Touche LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to

 

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underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus; and (B) at the Time of Delivery, the Representatives shall have received from Deloitte & Touche LLP a letter, dated as of the Time of Delivery, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (A) of this paragraph (e), except that the specified date referred to shall be a date not more than three business days prior to the Time of Delivery, and such letter shall contain statements and information with respect to certain financial information contained in the Prospectus;

 

(f)                                   (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Disclosure Package and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, and (ii) since the respective dates as of which information is given in the Disclosure Package and the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in Clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;

 

(g)                                  On or after the date of the Pricing Agreement relating to the Designated Securities (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Section 3(a)(62)  under the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock;

 

(h)                                 On or after the date of the Pricing Agreement relating to the Designated Securities there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or minimum or maximum prices shall have been generally established by the New York Stock Exchange, the Commission or FINRA; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a material disruption in securities settlement, payment or clearance services in the United States; (iv) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; or (v) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, or any crisis or calamity involving the United States, if the effect of any such event specified in this clause

 

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(v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus as first amended or supplemented relating to the Designated Securities; and

 

(i)                                     The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as the Representatives may reasonably request.

 

8.                                      (a)  The Company will indemnify and hold harmless each Underwriter  against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, 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) any untrue statement or alleged untrue statement of a material fact contained in the Disclosure Package, any Issuer Free Writing 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 will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Registration Statement, the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).

 

(b)                                 Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material

 

21



 

fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, and only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement (or any amendment thereto), the Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.

 

(c)                                  Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so notify the indemnifying party (i) shall not relieve it from liability under subsection (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) shall not, in any event, relieve it from any liability which it may have to any indemnified party otherwise than under such subsection.  In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties.  Upon receipt of written notice from the indemnifying party to such indemnified party of its election to so assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof (other than reasonable costs of investigation) unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (other than local counsel), representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party or (iii) the indemnifying party otherwise agrees to pay for such expenses.

 

(d)                                 The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without its written consent, which shall not be withheld

 

22



 

unreasonably, 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 or liability 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, (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement, and (iii) such indemnified party shall have given the indemnifying party at least 30 days’ prior notice of its intention to settle.  No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

(e)                                  If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates.  If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations.  The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters.  The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this

 

23



 

subsection (e).  The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.  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 obligations of the Underwriters of Designated Securities in this subsection (e) to contribute are several in proportion to their respective underwriting obligations with respect to such Designated Securities and not joint.

 

(f)                                   The obligations of the Company under this Section 8 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each director, officer, employee and agent of the Underwriter and to each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, each officer of the Company who signed the Registration Statement and to each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.

 

9.                                      (a)  If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein.  If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms.  In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Disclosure Package, the Prospectus as amended or supplemented or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus which in the opinion of the Representatives may thereby be made necessary.  The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities.

 

24



 

(b)                                 If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

(c)                                  If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

10.                               The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any director, officer, employee, agent or controlling person of any Underwriter, or the Company, or any director, officer, employee, agent or controlling person of the Company, and shall survive delivery of and payment for the relevant Designated Securities.

 

11.                               If any Pricing Agreement shall be terminated pursuant to Section 9 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Sections 6 and 8 hereof.

 

25



 

12.                               In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement.

 

All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement: Attention: Secretary.  Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

 

13.                               This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 8 and 10 hereof, the officers, directors, employees and agents of the Company and each Underwriter and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement.  No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.

 

14.                               As used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.

 

15.                               This Agreement and each Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

16.                               This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

 

17.                               The Company acknowledges and agrees that:  (i) the purchase and sale of any Designated Securities pursuant to this Agreement and any related Pricing Agreement, including the determination of the offering price of such Designated Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, 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 and any such Pricing Agreement; (ii) in connection with the transaction contemplated by the relevant Pricing Agreement 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 by the relevant Pricing Agreement or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and

 

26



 

no Underwriter has any obligation to the Company with respect to the offering contemplated by the relevant Pricing Agreement except the obligations expressly set forth in the relevant Pricing Agreement and this Agreement and any such Pricing 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 by the relevant Pricing Agreement, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate in connection therewith.

 

The relevant Pricing Agreement and this Agreement supersede all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters, or any of them, with respect to the transactions contemplated by such Pricing Agreement.  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 in connection therewith.

 

[Signature page follows.]

 

27



 

If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, whereupon this letter and your acceptance hereof shall constitute a binding agreement.

 

 

 

Very truly yours,

 

 

 

CARLISLE COMPANIES INCORPORATED

 

 

 

 

 

By:

/s/ Robert M. Roche

 

Name:  Robert M. Roche

 

Title:  Vice President and Chief Financial Officer

 

28



 

Accepted as of the date first written above:

 

 

J.P. MORGAN SECURITIES LLC

 

 

By:

/s/ Som Bhattachayya

 

 

Name:  Som Bhattachayya

 

 

Title:    Executive Director

 

 

 

 

 

 

 

MERRILL LYNCH, PIERCE, FENNER & SMITH

                              INCORPORATED

 

 

By:

/s/ Happy Hazelton

 

 

Name:  Happy Hazelton

 

 

Title:    Managing Director

 

 

 

 

 

 

 

SUNTRUST ROBINSON HUMPHREY, INC.

 

 

By:

/s/ Robert Nordlinger

 

 

Name:  Robert Nordlinger

 

 

Title:    Director

 

 

 

 

 

 

 

WELLS FARGO SECURITIES, LLC

 

 

By:

/s/ Carolyn Hurley

 

 

Name:  Carolyn Hurley

 

 

Title:    Director

 

 

29



 

ANNEX I

 

Pricing Agreement

 

J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179

 

Merrill Lynch, Pierce, Fenner & Smith
                      Incorporated

One Bryant Park

New York, New York 10036

 

SunTrust Robinson Humphrey, Inc.

3333 Peachtree Road, 11th Floor

Atlanta, GA 30326

 

Wells Fargo Securities, LLC

550 South Tryon Street, 5th Floor

Charlotte, NC 28202

 

As Representatives of the several

Underwriters named in Schedule I hereto

 

November 13, 2017

 

Ladies and Gentlemen:

 

Carlisle Companies Incorporated, a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated November 13, 2017 (the “Underwriting Agreement”), between the Company and J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC (the “Representatives”), relating to Debt Securities of the Company, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) the Securities specified in Schedule II hereto (the “Designated Securities”).  Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement.  Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you.  Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined.  The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto.

 

A-1



 

A final prospectus supplement to the Base Prospectus relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be electronically transmitted for filing with the Commission.

 

Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto.

 

The Company hereby acknowledges that the only information that the Underwriters have furnished to the Company expressly for use in the Registration Statement, the Disclosure Package and the Prospectus are the statements set forth in the third paragraph, the third sentence of the seventh paragraph, the eighth paragraph and the ninth paragraph under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus.

 

In addition, the obligations of the Underwriters of any Designated Securities set forth herein shall be subject, in the discretion of the Representatives, to the following conditions:

 

(a)                                 Dorsey & Whitney LLP, counsel to the Company, shall have furnished to the Representatives its written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that:

 

(i)                                     This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company;

 

(ii)                                  The Designated Securities have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Designated Securities and the Indenture conform in all material respects to the descriptions thereof in the Disclosure Package and the Prospectus;

 

(iii)                               The Indenture has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Indenture has been duly qualified under the Trust Indenture Act;

 

(iv)                           The statements set forth in each of the Disclosure Package and the  Prospectus under the caption “Description of Notes,” when taken together with the

 

A-2



 

statements set forth in the Base Prospectus under the caption “Description of Debt Securities,”(other than information contained therein provided in writing by any Underwriter through the Representatives expressly for use therein, as to which such counsel need express no opinion), insofar as they purport to describe the provisions of the laws, instruments and other documents referred to therein, are accurate, complete and fair in all material respects; and

 

(v)                                 Such counsel has participated in the preparation of the Registration Statement, the Disclosure Package and the Prospectus and in conferences with officers and other representatives of the Company, with representatives of the Underwriters and with counsel for the Underwriters at which the contents of the Registration Statement, the Disclosure Package, the Prospectus and related matters were discussed, and that although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, no facts have come to such counsel’s attention which lead him to believe that (i) either the Registration Statement or any subsequent amendments thereto (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), at the time the Registration Statement or such amendments became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), as of its date or at the Time of Delivery, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the Disclosure Package (other than the financial statements and related schedules and the financial data and statistical data derived therefrom and included therein or omitted therefrom and the Form T-1, as to which such counsel need express no opinion), as of the Initial Sale Time (as specified in such counsel’s letter), contained an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company.  It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters.

 

[Signature page follows.]

 

A-3



 

 

Very truly yours,

 

 

 

CARLISLE COMPANIES INCORPORATED

 

 

 

 

 

By:

/s/ Robert M. Roche

 

Name: Robert M. Roche

 

Title: Vice President and Chief Financial Officer

 

A-4



 

Accepted as of the date first written above:

 

 

J.P. MORGAN SECURITIES LLC

 

 

By:

/s/ Som Bhattachayya

 

 

Name:  Som Bhattachayya

 

 

Title:    Executive Director

 

 

 

 

 

 

 

MERRILL LYNCH, PIERCE, FENNER & SMITH
                              INCORPORATED

 

 

By:

/s/ Happy Hazelton

 

 

Name:  Happy Hazelton

 

 

Title:    Managing Director

 

 

 

SUNTRUST ROBINSON HUMPHREY, INC.

 

 

By:

/s/ Robert Nordlinger

 

 

Name:  Robert Nordlinger

 

 

Title:    Director

 

 

 

 

 

 

 

WELLS FARGO SECURITIES, LLC

 

 

By:

/s/ Carolyn Hurley

 

 

Name:  Carolyn Hurley

 

 

Title:    Director

 

 

A-5



 

Acting on behalf of themselves and as
     Representatives of the several
     Underwriters named in Schedule I

 

A-6



 

SCHEDULE I TO PRICING AGREEMENT

 

Underwriter

 

Principal
Amount of 2024
Notes to be
Purchased

 

J.P. Morgan Securities LLC

 

$

80,000,000

 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

 

80,000,000

 

SunTrust Robinson Humphrey, Inc.

 

80,000,000

 

Wells Fargo Securities, LLC

 

80,000,000

 

TD Securities (USA) LLC

 

38,000,000

 

Mizuho Securities USA LLC

 

22,000,000

 

HSBC Securities (USA) Inc.

 

10,000,000

 

PNC Capital Markets LLC

 

10,000,000

 

Total

 

$

400,000,000

 

 

Underwriter

 

Principal
Amount of 2027
Notes to be
Purchased

 

J.P. Morgan Securities LLC

 

120,000,000

 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

 

120,000,000

 

SunTrust Robinson Humphrey, Inc.

 

120,000,000

 

Wells Fargo Securities, LLC

 

120,000,000

 

TD Securities (USA) LLC

 

57,000,000

 

Mizuho Securities USA LLC

 

33,000,000

 

HSBC Securities (USA) Inc.

 

15,000,000

 

PNC Capital Markets LLC

 

15,000,000

 

Total

 

$

600,000,000

 

 

A-7



 

SCHEDULE II TO PRICING AGREEMENT

 

Title of Designated Securities:

3.50% Notes due 2024 (the “2024 Notes”)

3.75% Notes due 2027 (the “2027 Notes”, and, together with the 2024 Notes, the “Notes”)

 

Aggregate principal amount:

2024 Notes: $400,000,000

2027 Notes: $600,000,000

 

Price to Public:

2024 Notes: 99.893% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017

2027 Notes: 99.601% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017

 

Purchase Price by Underwriters:

2024 Notes: 99.268% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017

2027 Notes: 98.951% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017

 

Form of Designated Securities:

Book-entry only form represented by one or more global securities deposited with The Depository Trust Company (“DTC”) or its designated custodian for trading in the Same Day Funds Settlement System of DTC, and to be made available for checking by the Representatives at least twenty-four hours prior to the Time of Delivery

 

Specified funds for payment of purchase price:

Federal (same day) funds by wire transfer

 

Time of Delivery:

9:00 a.m. (New York City time), November 16, 2017

 

Indenture:

Indenture dated January 15, 1997, between the Company and Fleet National Bank, as Trustee, as supplemented for the purpose of appointing The Bank of New York Mellon Trust Company, N.A. to act as Trustee for the Notes.

 

Maturity:

2024 Notes: December 1, 2024

2027 Notes: December 1, 2027

 

Interest Rate:

2024 Notes: 3.50%

2027 Notes: 3.75%

 

A-8



 

Interest Payment Dates:

Each June 1 and December 1, commencing June 1, 2018

 

Redemption Provisions:

Prior to October 1, 2024, in the case of the 2024 Notes, and September 1, 2027, in the case of the 2027 Notes, (two months and three months prior to maturity of the 2024 Notes and the 2027 Notes, respectively) (each, the applicable “Par Call Date”), the Notes may be redeemed at the option of the Company, in whole or from time to time in part, at a redemption price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and  interest on the Notes being redeemed that would be due if the Notes matured on the applicable Par Call Date (not including any portion of such interest payments accrued as of the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable treasury rate on such redemption date plus 20 basis points and 25 basis points for the 2024 Notes and the 2027 Notes, respectively, plus, in each case, accrued and unpaid interest to the redemption date.

 

On or after the applicable Par Call Date, the Company may redeem the Notes at its option, in whole or from time to time in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to the redemption date.

 

Change of Control Triggering Event:

If a Change of Control Triggering Event (as defined in the Prospectus) occurs, the Company will be required to make an offer to repurchase the Notes at a price equal to 101% of their aggregate principal amount, plus accrued and unpaid interest to the date of repurchase.

 

Sinking Fund Provisions:

No sinking fund provisions

 

Defeasance Provisions:

As described in the Indenture

 

Closing location for delivery of Designated Securities:

Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY 10022

 

Names and addresses of Representatives:

Designated Representative:  J. P. Morgan Securities LLC.

Address for Notices, etc.:

J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Facsimile:  (212) 834-6081
Attention:  Investment Grade Syndicate Desk

 

Designated Representative:  Merrill Lynch, Pierce, Fenner & Smith Incorporated

Address for Notices, etc.:

 

A-9



 

Merrill Lynch, Pierce, Fenner & Smith

Incorporated

50 Rockefeller Plaza

NY1-050-12-02

New York, New York 10020

Facsimile: (646) 855-5958

Attention: High Grade Transaction Management/Legal

 

Designated Representative: SunTrust Robinson Humphrey, Inc.

Address for Notices, etc.:

SunTrust Robinson Humphrey, Inc.

3333 Peachtree Road NE, 11th Floor

Atlanta, GA 30326

Attn: Debt Capital Markets

 

Designated Representative:  Wells Fargo Securities, LLC

Address for Notices, etc.:

550 South Tryon Street, 5th Floor
Charlotte, NC 28202
Attention: Transaction Management
Facsimile: 704-4100326

 

A-10



 

EXHIBIT A TO PRICING AGREEMENT

 

Carlisle Companies Incorporated

 

Final Term Sheet

 

$400,000,000 3.500% Notes due 2024
$600,000,000 3.750% Notes due 2027

Issuer:

 

Carlisle Companies Incorporated

 

 

 

Principal Amount:

 

2024 Notes: $400,000,000
2027 Notes: $600,000,000

 

 

 

Maturity:

 

2024 Notes: December 1, 2024
2027 Notes: December 1, 2027

 

 

 

Coupon:

 

2024 Notes: 3.500%
2027 Notes: 3.750%

 

 

 

Yield to Maturity:

 

2024 Notes: 3.517%
2027 Notes: 3.798%

 

 

 

Trade Date:

 

November 13, 2017

 

 

 

Settlement Date:

 

November 16, 2017 (T+3)

 

 

 

CUSIP/ISIN:

 

2024 Notes: 142339AG5 / US142339AG53
2027 Notes: 142339AH3 / US142339AH37

 

 

 

Price to Public:

 

2024 Notes: 99.893% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017
2027 Notes: 99.601% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017

 

 

 

Purchase Price by Underwriters:

 

2024 Notes: 99.268% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017
2027 Notes: 98.951% of the principal amount of the Notes, plus accrued interest, if any, from November 16, 2017

 

 

 

Interest Payment Dates:

 

Each June 1 and December 1, commencing June 1, 2018

 

 

 

Benchmark Treasury:

 

2024 Notes: 2.250% due October 31, 2024
2027 Notes: 2.250% due November 15, 2027

 

 

 

Treasury Price & Yield:

 

2024 Notes: 99-28+; 2.267%

 

A-11



 

 

 

2027 Notes: 98-22; 2.398%

 

 

 

Spread to Benchmark Treasury:

 

2024 Notes: 125 bps
2027 Notes: 140 bps

 

 

 

Optional Redemption:

 

Prior to October 1, 2024, in the case of the 2024 Notes, and September 1, 2027, in the case of the 2027 Notes, (two months and three months prior to maturity of the 2024 Notes and the 2027 Notes, respectively) (each, the applicable “Par Call Date”), the Notes may be redeemed at the option of the Issuer, in whole or from time to time in part, at a redemption price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes being redeemed that would be due if the Notes matured on the applicable Par Call Date (not including any portion of such interest payments accrued as of the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the applicable treasury rate on such redemption date plus 20 basis points and 25 basis points for the 2024 Notes and the 2027 Notes, respectively, plus, in each case, accrued and unpaid interest to the redemption date.

 

On or after the applicable Par Call Date, the Issuer may redeem the Notes at its option, in whole or from time to time in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to the redemption date.

 

 

 

Offer to Purchase Upon Change of Control Triggering Event:

 

If a Change of Control Triggering Event (as defined in the prospectus supplement) occurs, the Issuer will be required to make an offer to repurchase the Notes at a price equal to 101% of their aggregate principal amount, plus accrued and unpaid interest to the date of repurchase.

 

 

 

Joint Book-Running Managers:

 

J.P. Morgan Securities LLC

Merrill Lynch, Pierce, Fenner & Smith
Incorporated

SunTrust Robinson Humphrey, Inc.
Wells Fargo Securities, LLC

 

 

 

Senior Co-Managers:

 

TD Securities (USA) LLC
Mizuho Securities USA LLC

 

 

 

Co-Managers:

 

HSBC Securities (USA) Inc.
PNC Capital Markets LLC

 

It is expected that delivery of the Notes will be made against payment therefor on or about November 16, 2017, which will be the third business day following the date of pricing of the Notes (such settlement cycle being referred to herein as ‘‘T+3’’). Under Rule 15c6-1 pursuant to the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes on the date of pricing will be required, by virtue of the fact that the Notes initially will settle in T+3, to specify an alternate

 

A-12



 

settlement cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade those Notes on the date of pricing should consult their own advisor.

 

The issuer has filed a registration statement, including a prospectus and a preliminary prospectus supplement, with the SEC for the offering to which this communication relates.  Before you invest, you should read the prospectus and the preliminary prospectus supplement in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering.  You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.  Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the preliminary prospectus supplement (or, if available, the prospectus supplement) if you request it by calling J.P. Morgan Securities LLC collect at (212) 834-4533 or Merrill Lynch, Pierce, Fenner & Smith Incorporated at (800) 294-1322 or e-mailing dg.prospectus_requests@baml.com, SunTrust Robinson Humphrey, Inc. toll-free at 1-800-685-4786 or Wells Fargo Securities, LLC at 1-800-645-3751 or wfscustomerservice@wellsfargo.com.

 

A-13



 

ANNEX II

 

Significant Subsidiaries

 

1)             Carlisle Intangible, LLC

2)             Carlisle, LLC

3)             Carlisle Construction Materials, LLC

4)             Carlisle Interconnect Technologies, Inc.

5)             Carlisle Fluid Technologies, Inc.

 

B-1


EXHIBIT 4.1

 

This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof.  This Security may not be transferred to, or registered or exchanged for Securities registered in the name of, any Person other than the Depository Trust Company or a nominee thereof and no such transfer may be registered, except in the limited circumstances described in the Indenture.  Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, this Security shall be a Global Security subject to the foregoing, except in such limited circumstances.

 

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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.

 

CARLISLE COMPANIES INCORPORATED

 

$

 

3.500% Notes Due 2024

 

No.

CUSIP 142339AG5

 

 

 

ISIN  US142339AG53

 

Principal Sum: $

 

Certain capitalized terms used but not defined herein shall have the meanings given to them in the Indenture under which this Security is issued.

 

Carlisle Companies Incorporated, a Delaware corporation (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 specified above, as may be reduced from time to time pursuant to Schedule A hereto, on December 1, 2024, unless earlier redeemed or repaid as herein provided, and to pay interest, if any, thereon from November 16, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 1 and December 1 in each year, commencing June 1, 2018 until the principal hereof is paid or made available for payment at the rate per annum of 3.500%.  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 Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be the May 15 or November 15 (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 Record Date and may either be paid to the Person in whose name this Security (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 Securities 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 Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

Payment of the principal of and interest on this Security will be made by transfer of immediately available funds to a bank account in the Borough of Manhattan, the City of New York designated by the holder in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 



 

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

[SIGNATURE PAGE FOLLOWS]

 

R-2



 

IN WITNESS WHEREOF, the Company has caused this instrument to be signed manually or by facsimile by its duly authorized officer.

 

Dated: November 16, 2017

 

 

 

 

 

 

CARLISLE COMPANIES INCORPORATED

 

 

 

[CORPORATE SEAL]

 

 

 

 

 

 

By:

 

 

 

Name:

Robert M. Roche

 

 

Title:

Vice President and Chief Financial Officer

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.

 

U.S. BANK NATIONAL ASSOCIATION

as Trustee

 

By:

 

 

 

Authorized Signatory

 

 

R-3



 

[REVERSE OF SECURITY]

 

This Security is one of a duly authorized issue of Securities of the Company designated as its “3.500% Notes Due 2024” (herein called the “Securities”), initially limited in aggregate principal amount to $400,000,000 issued and to be issued under an Indenture, dated as of January 15, 1997, between the Company and U.S. Bank National Association (as successor in interest to State Street Bank and Trust Company, as successor in interest to Fleet National Bank), as Trustee, as it may be amended and supplemented from time to time (the “Indenture”), to which indenture and all indentures supplemental thereto reference is hereby made 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 Securities are and are to be, authenticated and delivered.

 

The Securities shall be redeemable, in whole or in part, at the Company’s option at any time (a “Redemption Date”).  At any time prior to October 1, 2024 (the “Par Call Date”), the redemption price will be equal to the greater of (i) 100% of the principal amount of any Securities being redeemed; or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if the Securities matured on the Par Call Date (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points.  At any time on or after the Par Call Date, the Securities will be redeemable in whole or in part, at the Company’s option, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest on the Securities to be redeemed to the Redemption Date.  In each case, accrued and unpaid interest, if any, will be paid to the Redemption Date. Notwithstanding the foregoing, installments of interest on Securities that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered holders as of the close of business on the relevant record date in accordance with the Securities and the Indenture.  The Company will mail notice by first-class mail of any redemption at least 30 days, but not more than 60 days, before the Redemption Date to each registered holder of the Securities to be redeemed. Once the notice is mailed, the Securities called for redemption will become due and payable on the Redemption Date and at the applicable redemption price, plus accrued and unpaid interest to the Redemption Date.  On and after the Redemption Date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Company defaults in the payment of the applicable redemption price and accrued interest).  On or before the Redemption Date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the applicable redemption price of and accrued interest on the Securities to be redeemed on the Redemption Date.  If less than all of the Securities are to be redeemed, and the Securities are Global Securities, the Securities to be redeemed will be selected by the Depositary Trust Company (“DTC”), as the Depositary by lot.  If the Securities to be redeemed are not Global Securities then held by the DTC, the Securities to be redeemed will be selected by the Series Trustee by a method the Series Trustee deems to be fair and appropriate.

 

“Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Securities to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities (assuming, for this purpose, that the Securities matured on the Par Call Date).

 

“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (B) if the Trustee is provided with fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations or (C) if only one Reference Treasury Dealer Quotation is received, such quotation.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers or another independent investment banking institution of national standing appointed by the Company.

 

“Reference Treasury Dealer” means each of (i) J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities,LLC (ii) a primary U.S. Government securities dealer (a “Primary Treasury Dealer”) selected by SunTrust Robinson Humphrey, Inc. and (iii) one other Primary Treasury

 

R-4



 

Dealer selected by the Company, and their respective successors, but if any of the foregoing ceases to be a Primary Treasury Dealer, the Company will appoint another Primary Treasury Dealer.

 

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing and the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day preceding such Redemption Date.

 

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

Upon the occurrence of a Change of Control Triggering Event (as defined below), the Company shall notify the Trustee, and make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Securities of such series at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, the Company shall, or shall cause the Trustee to, mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control Triggering Event and stating: (1) that the Change of Control Offer is being made pursuant to the terms of this Security and that all Securities of such series properly tendered will be accepted for payment; (2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Security of such series not tendered will continue to accrue interest; (4) that, unless the Company defaults in the payment of the Change of Control Payment, all Securities of such series accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have any Securities of such series, with the form entitled “Option of Holder to Elect Purchase” attached as Exhibit 1 to this Security completed, purchased pursuant to a Change of Control Offer will be required to surrender such Securities to the Trustee or paying agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Trustee or paying agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Securities of such series delivered for purchase, and a statement that such Holder is withdrawing his election to have such Securities purchased; and (7) that Holders whose Securities of such series are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 thereof. 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 such laws and regulations are applicable in connection with the repurchase of Securities of such series in connection with a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this paragraph or the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this paragraph or the Indenture by virtue of such conflict.  On the Change of Control Payment Date, the Company shall, to the extent lawful: (1) accept for payment all Securities of such series or portions thereof properly tendered pursuant to the Change of Control Offer, (2) deposit with the Trustee or paying agent an amount equal to the Change of Control Payment in respect of all Securities of such series or portions thereof properly tendered and (3) deliver or cause to be delivered to the Trustee the Securities of such series properly accepted together with an Officers’ Certificate stating the aggregate principal amount of such Securities or portions thereof being purchased by the Company. The paying agent shall promptly mail to each Holder of Securities of such series properly tendered the Change of Control Payment for such Securities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered by such Holder, if any; provided, that each such new Security shall be in a principal amount of $2,000 or an integral multiple of $1,000 thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.  The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third Person makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements

 

R-5



 

set forth in this paragraph and all other provisions of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Securities of this series properly tendered and not withdrawn under such Change of Control Offer.

 

“Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and the Company’s subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or one of the Company’s subsidiaries; (2) the adoption of a plan relating to a liquidation or dissolution of the Company; (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person (as defined below) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock; or (4) the first day on which a majority of the members of the Board of Directors are not Continuing Directors.

 

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event.

 

“Continuing Directors” means a director who either was a member of the Board of Directors on November 13, 2017 or who becomes a director subsequent to that date and whose nomination for election by the Company’s stockholders, appointment or other election, is duly approved by a majority of the continuing directors on the Board of Directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the entire Board of Directors in which such individual is named as nominee for director.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

 

“Moody’s” means Moody’s Investors Service, Inc.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.

 

“Rating Agency” means each of S&P and Moody’s, or if S&P or Moody’s or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody’s, or both, as the case may be.

 

“Rating Event” means the Securities of such series are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of 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 any of the Rating Agencies).

 

“S&P” means Standard & Poor’s Ratings Services, a division of S&P Global, Inc.

 

“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.

 

R-6



 

If an Event of Default shall occur with respect to the Securities and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance by the Company with certain conditions set forth 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 Securities 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 Securities at the time Outstanding.  The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, 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 holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu thereof, whether or not notation of such consent or waiver is made upon this Security.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

 

This Global Security or portion hereof may not be exchanged for Definitive Securities except in the limited circumstances provided in the Indenture.

 

The Securities are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by a Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

In the event that (i) the Depositary or another depositary in respect of the Securities of this series, as the case may be, notifies the Company that it is unwilling or unable to continue as a depository and a successor depository is not appointed by the Company within 60 days of such notice, (ii) the Depositary with respect to such Global Securities so requests following an Event of Default under the Indenture or (iii) the owner of a beneficial interest in the Global Securities requests such exchange in writing delivered through the Depositary or the Company following an Event of Default under the Indenture, then the Holder hereof shall surrender this Global Security to the Trustee for cancellation and whereupon, in accordance with Section 3.05 of the Indenture, the Company will execute and the Trustee will authenticate and deliver Securities of this series in definitive registered form without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, and in an aggregate principal amount equal to the principal amount of this Global Security at the time outstanding in exchange for this Global Security.

 

Prior to due presentment of this Security 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 Security is registered as the owner hereof for all purposes, whether or not any amount due in respect of this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

The Securities shall be governed by and construed in accordance with the laws of the State of New York.

 

R-7



 

SCHEDULE A

 

SCHEDULE OF PRINCIPAL SUM REDUCTIONS

 

Principal Sum outstanding as of November 16, 2017: $

 

Thereafter, the following decreases have been made:

 

Date of
Redemption or
Repurchase

 

Principal Amount
Redeemed or
Repurchased

 

Principal Amount
Remaining

 

Notation Made by or on
Behalf of
the Trustee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

R-8



 

EXHIBIT 1

 

OPTION OF HOLDER TO ELECT PURCHASE

 

The undersigned hereby elects optional redemption of Carlisle Companies Incorporated, 3.500% Notes due 2024, No.   , CUSIP No. 142339AG5 (the portion thereof specified below) with the effect provided in said Security by delivering this form of “Option of Holder to Elect Purchase” duly completed by the Holder of said Security to the Trustee at U.S. Bank National Association, U.S. Bank National Association, Global Corporate Trust Services, 101 North First Avenue, Suite 1600, Phoenix, AZ 85003 | LM-AZ-X16P or such other address of which Carlisle Companies Incorporated shall from time to time notify the Holders of the Securities.

 

Specify the portion of said Security (which shall be U.S. $2,000 or an integral multiple of U.S. $1,000 in excess thereof, which may be all or part of the Holder’s interest in said Security) as to which the Holder elects optional redemption:

 

U.S.$                                      .

 

 

 

Dated:

 

 

 

 

 

Signature:

 

 

 

 

NOTE:  The signature to this notice must correspond with the name as written upon the face of the within Global Security in every particular without alteration or enlargement or any change whatsoever and must be guaranteed by a commercial bank or trust company having its principal office or correspondent in The City of New York or by a member of the New York Stock Exchange.

 

R-9



 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

 

(Print or Type Name and Address including Zip Code of Assignee)

 

the within Global Security, and all rights thereunder, hereby irrevocably constituting and appointing

 

                                                                                                                                                                                                 attorney to transfer said Global Security on the books of the Company, with full power of substitution in the premises.

 

Dated

 

 

 

NOTE:  The signature to this assignment must correspond with the name as written upon the face of the within Global Security in every particular without alteration or enlargement or any change whatsoever and must be guaranteed by a commercial bank or trust company having its principal office or correspondent in The City of New York or by a member of the New York Stock Exchange.

 

R-10


Exhibit 4.2

 

This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depositary or a nominee thereof.  This Security may not be transferred to, or registered or exchanged for Securities registered in the name of, any Person other than the Depository Trust Company or a nominee thereof and no such transfer may be registered, except in the limited circumstances described in the Indenture.  Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, this Security shall be a Global Security subject to the foregoing, except in such limited circumstances.

 

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 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.

 

CARLISLE COMPANIES INCORPORATED

 

$

 

3.750% Notes Due 2027

 

No.

CUSIP 142339AH3

 

 

 

ISIN US142339AH37

 

Principal Sum: $

 

Certain capitalized terms used but not defined herein shall have the meanings given to them in the Indenture under which this Security is issued.

 

Carlisle Companies Incorporated, a Delaware corporation (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 specified above, as may be reduced from time to time pursuant to Schedule A hereto, on December 1, 2027, unless earlier redeemed or repaid as herein provided, and to pay interest, if any, thereon from November 16, 2017 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on June 1 and December 1 in each year, commencing June 1, 2018 until the principal hereof is paid or made available for payment at the rate per annum of 3.750%.  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 Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be the May 15 or November 15 (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 Record Date and may either be paid to the Person in whose name this Security (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 Securities 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 Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture.

 

Payment of the principal of and interest on this Security will be made by transfer of immediately available funds to a bank account in the Borough of Manhattan, the City of New York designated by the holder in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.

 



 

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH HEREIN.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be signed manually or by facsimile by its duly authorized officer.

 

Dated: November 16, 2017

 

 

 

 

 

 

CARLISLE COMPANIES INCORPORATED

 

 

 

[CORPORATE SEAL]

 

 

 

 

 

 

By:

 

 

 

Name: Robert M. Roche

 

 

Title:    Vice President and Chief Financial Officer

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.

 

U.S. BANK NATIONAL ASSOCIATION

as Trustee

 

 

By:

 

 

 

Authorized Signatory

 

 

R-3



 

[REVERSE OF SECURITY]

 

This Security is one of a duly authorized issue of Securities of the Company designated as its “3.750% Notes Due 2027” (herein called the “Securities”), initially limited in aggregate principal amount to $600,000,000 issued and to be issued under an Indenture, dated as of January 15, 1997, between the Company and U.S. Bank National Association (as successor in interest to State Street Bank and Trust Company, as successor in interest to Fleet National Bank), as Trustee, as it may be amended and supplemented from time to time (the “Indenture”), to which indenture and all indentures supplemental thereto reference is hereby made 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 Securities are and are to be, authenticated and delivered.

 

The Securities shall be redeemable, in whole or in part, at the Company’s option at any time (a “Redemption Date”).  At any time prior to September 1, 2027 (the “Par Call Date”), the redemption price will be equal to the greater of (i) 100% of the principal amount of any Securities being redeemed; or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if the Securities matured on the Par Call Date (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 25 basis points.  At any time on or after the Par Call Date, the Securities will be redeemable in whole or in part, at the Company’s option, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest on the Securities to be redeemed to the Redemption Date.  In each case, accrued and unpaid interest, if any, will be paid to the Redemption Date. Notwithstanding the foregoing, installments of interest on Securities that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered holders as of the close of business on the relevant record date in accordance with the Securities and the Indenture.  The Company will mail notice by first-class mail of any redemption at least 30 days, but not more than 60 days, before the Redemption Date to each registered holder of the Securities to be redeemed. Once the notice is mailed, the Securities called for redemption will become due and payable on the Redemption Date and at the applicable redemption price, plus accrued and unpaid interest to the Redemption Date.  On and after the Redemption Date, interest will cease to accrue on the Securities or any portion of the Securities called for redemption (unless the Company defaults in the payment of the applicable redemption price and accrued interest).  On or before the Redemption Date, the Company will deposit with a paying agent (or the Trustee) money sufficient to pay the applicable redemption price of and accrued interest on the Securities to be redeemed on the Redemption Date.  If less than all of the Securities are to be redeemed, and the Securities are Global Securities, the Securities to be redeemed will be selected by the Depositary Trust Company (“DTC”), as the Depositary by lot.  If the Securities to be redeemed are not Global Securities then held by the DTC, the Securities to be redeemed will be selected by the Series Trustee by a method the Series Trustee deems to be fair and appropriate.

 

“Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Securities to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities (assuming, for this purpose, that the Securities matured on the Par Call Date).

 

“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (B) if the Trustee is provided with fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations or (C) if only one Reference Treasury Dealer Quotation is received, such quotation.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers or another independent investment banking institution of national standing appointed by the Company.

 

“Reference Treasury Dealer” means each of (i) J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wells Fargo Securities,LLC (ii) a primary U.S. Government securities dealer (a “Primary Treasury Dealer”) selected by SunTrust Robinson Humphrey, Inc. and (iii) one other Primary Treasury

 

R-4



 

Dealer selected by the Company, and their respective successors, but if any of the foregoing ceases to be a Primary Treasury Dealer, the Company will appoint another Primary Treasury Dealer.

 

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing and the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day preceding such Redemption Date.

 

“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.

 

Upon the occurrence of a Change of Control Triggering Event (as defined below), the Company shall notify the Trustee, and make an offer (a “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Securities of such series at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event, the Company shall, or shall cause the Trustee to, mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control Triggering Event and stating: (1) that the Change of Control Offer is being made pursuant to the terms of this Security and that all Securities of such series properly tendered will be accepted for payment; (2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”); (3) that any Security of such series not tendered will continue to accrue interest; (4) that, unless the Company defaults in the payment of the Change of Control Payment, all Securities of such series accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have any Securities of such series, with the form entitled “Option of Holder to Elect Purchase” attached as Exhibit 1 to this Security completed, purchased pursuant to a Change of Control Offer will be required to surrender such Securities to the Trustee or paying agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Trustee or paying agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Securities of such series delivered for purchase, and a statement that such Holder is withdrawing his election to have such Securities purchased; and (7) that Holders whose Securities of such series are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 thereof. 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 such laws and regulations are applicable in connection with the repurchase of Securities of such series in connection with a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this paragraph or the Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this paragraph or the Indenture by virtue of such conflict.  On the Change of Control Payment Date, the Company shall, to the extent lawful: (1) accept for payment all Securities of such series or portions thereof properly tendered pursuant to the Change of Control Offer, (2) deposit with the Trustee or paying agent an amount equal to the Change of Control Payment in respect of all Securities of such series or portions thereof properly tendered and (3) deliver or cause to be delivered to the Trustee the Securities of such series properly accepted together with an Officers’ Certificate stating the aggregate principal amount of such Securities or portions thereof being purchased by the Company. The paying agent shall promptly mail to each Holder of Securities of such series properly tendered the Change of Control Payment for such Securities, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Security equal in principal amount to any unpurchased portion of the Securities surrendered by such Holder, if any; provided, that each such new Security shall be in a principal amount of $2,000 or an integral multiple of $1,000 thereof. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.  The Company will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if a third Person makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements

 

R-5



 

set forth in this paragraph and all other provisions of the Indenture applicable to a Change of Control Offer made by the Company and purchases all Securities of this series properly tendered and not withdrawn under such Change of Control Offer.

 

“Capital Stock” means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and the Company’s subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Company or one of the Company’s subsidiaries; (2) the adoption of a plan relating to a liquidation or dissolution of the Company; (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person (as defined below) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock; or (4) the first day on which a majority of the members of the Board of Directors are not Continuing Directors.

 

“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event.

 

“Continuing Directors” means a director who either was a member of the Board of Directors on November 13, 2017 or who becomes a director subsequent to that date and whose nomination for election by the Company’s stockholders, appointment or other election, is duly approved by a majority of the continuing directors on the Board of Directors at the time of such approval, either by a specific vote or by approval of the proxy statement issued by the Company on behalf of the entire Board of Directors in which such individual is named as nominee for director.

 

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

 

“Moody’s” means Moody’s Investors Service, Inc.

 

“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision thereof or any other entity.

 

“Rating Agency” means each of S&P and Moody’s, or if S&P or Moody’s or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody’s, or both, as the case may be.

 

“Rating Event” means the Securities of such series are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of 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 any of the Rating Agencies).

 

“S&P” means Standard & Poor’s Ratings Services, a division of S&P Global, Inc.

 

“Voting Stock” of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote generally in the election of the board of directors of such Person.

 

R-6



 

If an Event of Default shall occur with respect to the Securities and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.

 

The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance by the Company with certain conditions set forth 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 Securities 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 Securities at the time Outstanding.  The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, 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 holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu thereof, whether or not notation of such consent or waiver is made upon this Security.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.

 

This Global Security or portion hereof may not be exchanged for Definitive Securities except in the limited circumstances provided in the Indenture.

 

The Securities are issuable only in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.  As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by a Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

 

In the event that (i) the Depositary or another depositary in respect of the Securities of this series, as the case may be, notifies the Company that it is unwilling or unable to continue as a depository and a successor depository is not appointed by the Company within 60 days of such notice, (ii) the Depositary with respect to such Global Securities so requests following an Event of Default under the Indenture or (iii) the owner of a beneficial interest in the Global Securities requests such exchange in writing delivered through the Depositary or the Company following an Event of Default under the Indenture, then the Holder hereof shall surrender this Global Security to the Trustee for cancellation and whereupon, in accordance with Section 3.05 of the Indenture, the Company will execute and the Trustee will authenticate and deliver Securities of this series in definitive registered form without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, and in an aggregate principal amount equal to the principal amount of this Global Security at the time outstanding in exchange for this Global Security.

 

Prior to due presentment of this Security 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 Security is registered as the owner hereof for all purposes, whether or not any amount due in respect of this Security be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.

 

The Securities shall be governed by and construed in accordance with the laws of the State of New York.

 

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SCHEDULE A

 

SCHEDULE OF PRINCIPAL SUM REDUCTIONS

 

Principal Sum outstanding as of November 16, 2017: $

 

Thereafter, the following decreases have been made:

 

Date of
Redemption or
Repurchase

 

Principal Amount
Redeemed or
Repurchased

 

Principal Amount
Remaining

 

Notation Made by or on
Behalf of
the Trustee

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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EXHIBIT 1

 

OPTION OF HOLDER TO ELECT PURCHASE

 

The undersigned hereby elects optional redemption of Carlisle Companies Incorporated, 3.750% Notes due 2027, No.   , CUSIP No. 142339AH3 (the portion thereof specified below) with the effect provided in said Security by delivering this form of “Option of Holder to Elect Purchase” duly completed by the Holder of said Security to the Trustee at U.S. Bank National Association, Global Corporate Trust Services, 101 North First Avenue, Suite 1600, Phoenix, AZ 85003 | LM-AZ-X16P or such other address of which Carlisle Companies Incorporated shall from time to time notify the Holders of the Securities.

 

Specify the portion of said Security (which shall be U.S. $2,000 or an integral multiple of U.S. $1,000 in excess thereof, which may be all or part of the Holder’s interest in said Security) as to which the Holder elects optional redemption:

 

U.S.$                                      .

 

 

 

 

Dated:

 

 

 

 

 

Signature:

 

 

 

NOTE:  The signature to this notice must correspond with the name as written upon the face of the within Global Security in every particular without alteration or enlargement or any change whatsoever and must be guaranteed by a commercial bank or trust company having its principal office or correspondent in The City of New York or by a member of the New York Stock Exchange.

 

R-9



 

FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

 

(Print or Type Name and Address including Zip Code of Assignee)

 

the within Global Security, and all rights thereunder, hereby irrevocably constituting and appointing

 

attorney to transfer said Global Security on the books of the Company, with full power of substitution in the premises.

 

 

Dated

 

 

 

NOTE:  The signature to this assignment must correspond with the name as written upon the face of the within Global Security in every particular without alteration or enlargement or any change whatsoever and must be guaranteed by a commercial bank or trust company having its principal office or correspondent in The City of New York or by a member of the New York Stock Exchange.

 

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Exhibit 5.1

 

November 16, 2017

 

Board of Directors

Carlisle Companies Incorporated

16430 North Scottsdale Road, Suite 400

Scottsdale, Arizona 85254

 

Re:                             Registration Statement on Form S-3

File No. 333-221410

 

Ladies and Gentlemen:

 

We have acted as special counsel to Carlisle Companies Incorporated, a Delaware corporation (the “Company”), in connection with the filing by the Company with the Securities and Exchange Commission (the “Commission”) of a Prospectus Supplement (the “Prospectus Supplement”), dated November 13, 2017, to the Prospectus, dated November 8, 2017, included in the Registration Statement on Form S-3 (File No. 333-221410) (the “Registration Statement”) filed by the Company with the Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale by the Company of $400,000,000 aggregate principal amount of its 3.500% Notes due 2024 and $600,000,000 aggregate principal amount of its 3.750% Notes due 2027 (the “2027 Notes” and together with the 2024 Notes, the “Notes”). The Notes are to be issued pursuant to the Indenture dated as of January 15, 1997 (the “Indenture”) between the Company and U.S. Bank National Association (as successor-in-interest to State Street Bank and Trust Corporation, as successor-in-interest to Fleet National Bank), as trustee (the “Trustee”), and a Board Resolution adopted on September 11, 2017 and the Action of Designated Officers dated November 16, 2017 authorizing the terms of the Notes pursuant to Section 301 of the Indenture. The Notes are to be sold pursuant to the Pricing Agreement dated November 13, 2017 (the “Pricing Agreement”) among the Company, J.P. Morgan Securities LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, SunTrust Robinson Humphrey, Inc. and Wells Fargo Securities, LLC, as representatives of the underwriters named therein (the “Representatives”), relating to the Notes, which incorporates by reference the Underwriting Agreement dated November 13, 2017 (the “Underwriting Agreement”) among the Company and the Representatives.

 

We have examined such documents and have reviewed such questions of law as we have considered necessary or appropriate for the purposes of our opinion set forth below. In rendering our opinion set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements and instruments, that such agreements and instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements and instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinion, we have relied upon certificates or comparable documents of officers and other representatives of the Company and of public officials.

 

Based on the foregoing, we are of the opinion that the Notes, when duly executed by the Company, authenticated by the Trustee in accordance with the terms of the Indenture and delivered against payment of the consideration therefor specified in the Pricing Agreement, will constitute binding obligations of the Company.

 

Our opinion set forth above is subject to the following qualifications and exceptions:

 

(a)                                 the effects of any applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent transfer, statutes of limitation or other similar laws and judicial decisions affecting or relating to the rights of creditors generally;

 

(b)                                 the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, estoppel, election of remedies and other similar doctrines affecting the enforceability of agreements generally (regardless of whether enforcement

 



 

is considered in a proceeding in equity or at law); in addition, the availability of specific performance, injunctive relief, the appointment of a receiver or other equitable remedies is subject to the discretion of the tribunal before which any proceeding therefor may be brought;

 

(c)                                  limitations regarding the availability of indemnification and contribution where such indemnification or contribution may be limited by applicable law or the application of principles of public policy;

 

(d)                                 we express no opinion as to the enforceability of (i) provisions that relate to choice of law, forum selection or submission to jurisdiction (including, without limitation, any express or implied waiver of any objection to venue in any court or of any objection that a court is an inconvenient forum) to the extent that the validity, binding effect or enforceability of any such provision is to be determined by any court other than a state court of the State of New York, (ii) waivers by the Company of any statutory or constitutional rights or remedies, (iii) terms which excuse any person or entity from liability for, or require the Company to indemnify such person or entity against, such person’s or entity’s negligence or willful misconduct or (iv) obligations to pay any prepayment premium, default interest rate, early termination fee or other form of liquidated damages, if the payment of such premium, interest rate, fee or damages may be construed as unreasonable in relation to actual damages or disproportionate to actual damages suffered as a result of such prepayment, default or termination; and

 

(e)                                  we draw your attention to the fact that, under certain circumstances, the enforceability of terms to the effect that provisions may not be waived or modified except in writing may be limited.

 

Our opinion expressed above is limited to the laws of the State of New York and the Delaware General Corporation Law.

 

We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Company with the Commission on the date hereof, which Current Report on Form 8-K will be incorporated by reference into the Registration Statement, and to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

 

Very truly yours,

 

/s/ Dorsey & Whitney LLP

 

GLT/EM

 


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