Exhibit 1.1
AMPHENOL CORPORATION
$400,000,000 2.050% Senior Notes due
2025
UNDERWRITING AGREEMENT
February 13, 2020
Underwriting Agreement
February 13, 2020
Bofa securities, inc.
mizuho
securities usa llc
TD SEcurities
(usa) llc
As Representatives of the several Underwriters
named in Schedule A hereto
c/o BofA Securities, Inc.
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Mizuho Securities USA LLC
1271 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
c/o TD Securities (USA) LLC
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Introductory. Amphenol
Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters
named in Schedule A (the “Underwriters”), acting severally and not jointly, the respective amounts set
forth in such Schedule A of $400,000,000 aggregate principal amount of the Company’s 2.050% Senior Notes due 2025
(the “Notes”). BofA Securities, Inc., Mizuho Securities USA LLC and TD Securities (USA) LLC have agreed
to act as representatives of the several Underwriters (in such capacity, the “Representatives”) in connection
with the offering and sale of the Notes.
The Notes will be issued
pursuant to an indenture, dated as of November 5, 2009 (the “Base Indenture”), between the Company and
The Bank of New York Mellon, as trustee (the “Trustee”). Certain terms of the Notes will be established pursuant
to an Officers’ Certificate delivered pursuant to the Base Indenture (together with the Base Indenture, the “Indenture”).
The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company (the
“Depositary”), pursuant to a Letter of Representations, to be dated on or before the Closing Date (as defined
in Section 2(b) below) (the “DTC Agreement”), among the Company, the Trustee and the Depositary.
The Company has prepared
and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3
(File No. 333-216789), which became effective upon filing with the Commission and contains a base prospectus (the “Base
Prospectus”), to be used in connection with the public offering and sale of debt securities, including the Notes, of
the Company under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively,
the “Securities Act”), and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act. Such registration statement, including the financial statements, exhibits and schedules thereto, in the form in
which it became effective under the Securities Act, including any required information deemed to be a part thereof at the time
of effectiveness pursuant to Rule 430B under the Securities Act, is called the “Registration Statement.”
The term “Prospectus” shall mean the final prospectus supplement relating to the Notes, together with the Base
Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after the date and time that this Agreement
is executed (the “Execution Time”) by the parties hereto. The term “Preliminary Prospectus”
shall mean the preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed
with the Commission pursuant to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act prior to 2:25 p.m., New York City time, on February 13,
2020 (the “Initial Sale Time”). All references in this Agreement to the Registration Statement, the Preliminary
Prospectus, the Prospectus or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”).
All references in this
Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus
shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior
to the Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the
Prospectus or the Preliminary Prospectus shall be deemed to include any document filed under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), which
is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as
the case may be, after the Initial Sale Time.
The Company hereby confirms its agreements
with the Underwriters as follows:
Section 1.
Representations and Warranties of the Company
The Company hereby represents, warrants
and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date (in each case,
a “Representation Date”), as follows:
a) Compliance
with Registration Requirements. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration
Statement 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, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”).
At the respective times
the Registration Statement and any post-effective amendments thereto became effective and at each Representation Date, the Registration
Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements of the Securities
Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of
the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include
an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective
amendment or the Prospectus or any amendments or supplements thereto (i) made in reliance upon and in conformity with information
furnished to the Company in writing by any of the Underwriters through the Representatives expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter through the Representatives consists of the information
described as such in Section 8(b) hereof and (ii) in the case of the Registration Statement or any post-effective
amendment, that part of the Registration Statement which shall constitute the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of the Trustee.
The Preliminary Prospectus
and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the Securities Act,
and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the
Notes will, at the time of such delivery, be identical to any electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
b) Disclosure
Package. The term “Disclosure Package” shall mean (i) the Preliminary Prospectus dated February 13,
2020, (ii) the issuer free writing prospectuses as defined in Rule 433 under the Securities Act, if any, identified in
Annex I hereto and (iii) any other free writing prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any
untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished
by any Underwriter through the Representatives consists of the information described as such in Section 8(b) hereof.
c) Incorporated
Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply
in all material respects with the requirements of the Exchange Act and (ii) when read together with the other information
in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the
date of the Prospectus and at the Closing Date, did not or will not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
d) Company
is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form
of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only,
of Rule 163(c) under the Securities Act) made any offer relating to the Notes in reliance on the exemption of Rule 163
under the Securities Act, and (iv) as of the Execution Time, the Company was and is a “well known seasoned issuer”
as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,”
as defined in Rule 405 under the Securities Act, that automatically became effective not more than three years prior to the
Execution Time; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities
Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible
to use the automatic shelf registration form.
e) Company
is not an Ineligible Issuer. (i) At the time of filing the Registration Statement and (ii) as of the Execution Time
(with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible
Issuer (as defined in Rule 405 under the Securities Act), without taking account of any determination by the Commission pursuant
to Rule 405 under the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
f) Issuer
Free Writing Prospectuses. Each “written communication” (as defined in Rule 405 under the Securities Act)
that constitutes an offer to sell or solicitation of an offer to buy the Notes, including the issuer free writing prospectuses
identified in Annex I hereto as constituting part of the Disclosure Package, and any electronic road show (including the
investor presentation dated February 13, 2020) or other written communications (in each case approved in writing in advance
by the Representatives) (each such communication by the Company or its agents and representatives, an “Issuer Free Writing
Prospectus”), as of its issue date and at all subsequent times through the completion of the offering of Notes under
this Agreement or until any earlier date that the Company notified or notifies the Representatives as described in the next sentence,
did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement, the Preliminary Prospectus or the Prospectus. Any Issuer Free Writing Prospectus, when taken together
with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not,
and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the of the circumstances under which they were made, not misleading. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary
Prospectus or the Prospectus, the Company has promptly notified or will promptly notify the Representatives and has promptly amended
or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict. The foregoing three sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representatives
consists of the information described as such in Section 8(b) hereof.
g) Distribution
of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the later of the Closing
Date and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering
and sale of the Notes other than the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented
to by the Representatives and included in Annex I hereto or the Registration Statement.
h) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this
Agreement, except for such rights as have been duly waived.
i) The
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and, when duly executed
and delivered in accordance with its terms by each of the other parties hereto, will constitute a valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles and except that the rights to indemnity and contribution hereunder may be limited by applicable
law and public policy.
j) Authorization
of the Indenture. The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance
with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
k) Authorization
of the Notes. The Notes to be purchased by the Underwriters from the Company are in the form contemplated by the Indenture,
have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture by the Company and, at the Closing
Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles,
and will be entitled to the benefits of the Indenture.
l) Description
of the Notes and the Indenture. The Notes and the Indenture conform in all material respects to the descriptions thereof contained
in the Disclosure Package and the Prospectus.
m) Accuracy
of Statements in Prospectus. The statements in each of the Preliminary Prospectus and the Prospectus under the captions “Description
of the Notes,” “Description of the Senior Debt Securities” and “Material United States Federal Income Tax
Consequences,” in each case insofar as such statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
n) No
Material Adverse Change. Except as otherwise disclosed in the Disclosure Package, subsequent to the respective dates as of
which information is given in the Disclosure Package, (i) neither the Company nor any of its subsidiaries has sustained any
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, except as would not, individually or in the aggregate, result
in a Material Adverse Change (defined below) and (ii) there has been no material adverse change, or any development that would
be expected to result in a material adverse change, in the financial condition, business, properties, results of operations or
prospects, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered
as one entity (any such change is called a “Material Adverse Change”).
o) Independent
Accountants. Deloitte & Touche LLP, who have expressed their opinion with respect to the Company’s audited financial
statements for the fiscal years ended December 31, 2017, 2018 and 2019 incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus, are independent public accountants with respect to the Company as required by the
Securities Act and the Exchange Act and are an independent registered public accounting firm with the Public Company Accounting
Oversight Board.
p) Preparation
of the Financial Statements. The financial statements together with the related notes thereto incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Prospectus present fairly in all material respects the consolidated
financial position of the Company and its subsidiaries as of and at the dates indicated and the results of their operations and
cash flows for the periods specified. Such financial statements comply as to form with the accounting requirements of the Securities
Act and have been prepared in conformity with generally accepted accounting principles as applied in the United States (“GAAP”)
applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto.
No other financial statements are required to be included in the Registration Statement. The selected financial data and the summary
financial information included in the Preliminary Prospectus and the Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent 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 Language included
or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly presents the information
called for in all material respects and has been prepared in accordance with the Commission's rules and guidelines applicable
thereto.
q) Incorporation
and Good Standing of the Company and its Significant Subsidiaries. Each of the Company and its “significant subsidiaries”
(as defined in Rule 1-02(10) of Regulation S-X, the “Significant Subsidiaries”) has been duly incorporated
or formed and is validly existing and is in good standing (to the extent such concept is applicable in the relevant jurisdiction)
under the laws of the jurisdiction of its incorporation or formation and has power and authority to own or lease, as the case may
be, and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and, in the
case of the Company, to enter into and perform its obligations under this Agreement. Each of the Company and each Significant Subsidiary
is duly qualified as a foreign corporation or business to transact business and is in good standing (to the extent such concept
is applicable in the relevant jurisdiction) in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify
or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Change. All of the issued and
outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable and, except for shares necessary to qualify directors or to maintain any minimum number of shareholders required
by law, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim. The Company does not have any subsidiary not listed on Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the year ended December 31, 2019, which is required to be so listed. All Significant Subsidiaries
are listed in Annex II hereto.
r) Capitalization
and Other Capital Stock Matters. The authorized, issued and outstanding capital stock of the Company is as set forth in the
Disclosure Package and the Prospectus under the caption “Capitalization” (other than for subsequent issuances, if any,
pursuant to employee benefit plans described in the Disclosure Package and the Prospectus or upon exercise of outstanding options
described in the Disclosure Package and the Prospectus, as the case may be, and except for repurchases in connection with open
market or repurchase plans described in the Disclosure Package and the Prospectus).
s) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Except as otherwise disclosed in the Disclosure Package
and the Prospectus, none of the Company or any of its subsidiaries is (i) in violation or in default (or, with the giving
of notice or lapse of time or both, would be in default) (“Default”) under its articles of incorporation, charter
or by-laws, (ii) in Default under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise,
lease or other agreement, obligation, condition, covenant or instrument to which the Company or any of its Significant Subsidiaries
is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its Significant
Subsidiaries is subject (each, an “Existing Instrument”) or (iii) in violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its subsidiaries or any of its or their properties, as applicable, except,
with respect to clauses (i) (other than with respect to the Company and the Significant Subsidiaries), (ii) and (iii),
for such Defaults or violations as would not, individually or in the aggregate, result in a Material Adverse Change. The Company’s
execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby, by the Disclosure
Package and by the Prospectus (A) have been duly authorized by all necessary corporate action and will not result in any Default
under the articles of incorporation, charter or by-laws of the Company or any Significant Subsidiary, (B) will not conflict
with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Significant Subsidiaries
pursuant to, or require the consent of any other party to, any Existing Instrument, and (C) will not result in any violation
of any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or
any of its subsidiaries or any of its or their properties, except for such violation as would not, individually or in the aggregate,
result in a Material Adverse Change. No consent, approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency is required for the Company’s execution, delivery and performance
of this Agreement or consummation of the transactions contemplated hereby, by the Disclosure Package or by the Prospectus, except
such as have been obtained or made by the Company and are in full force and effect under the Securities Act, applicable state securities
or blue sky laws and from the Financial Industry Regulatory Authority (the “FINRA”). As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time or
both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) issued by the Company, the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any of its Significant Subsidiaries.
t) No
Material Actions or Proceedings. Except as disclosed in the Prospectus and the Disclosure Package, there are no legal or governmental
actions, suits or proceedings pending or, to the Company’s knowledge, threatened (i) against or affecting the Company
or any of its subsidiaries, (ii) which has as the subject thereof any officer or director of, or property owned or leased
by, the Company or any of its subsidiaries or (iii) relating to environmental or discrimination matters related to the Company
or its subsidiaries, where any such action, suit or proceeding, if determined adversely, would, individually or in the aggregate,
result in a Material Adverse Change or adversely affect the consummation of the transactions contemplated by this Agreement.
u) Labor
Matters. No material collective labor dispute with the employees of the Company or any of its Significant Subsidiaries exists
that would, individually or in the aggregate, result in a Material Adverse Change.
v) Intellectual
Property Rights. Except as would not reasonably be expected to result in a Material Adverse Change or as set forth in the Disclosure
Package and the Prospectus, to the Company’s knowledge, the Company or its subsidiaries own or possess a valid right to use
all patents, trademarks, service marks, trade names, copyrights, patentable inventions, trade secret, know-how and other intellectual
property (collectively, the “Intellectual Property”) used by the Company or its subsidiaries in, and material
to, the conduct of the Company’s or its subsidiaries’ business as now conducted or as proposed in the Disclosure Package
and the Prospectus to be conducted. Except as set forth in the Disclosure Package and the Prospectus, to the Company’s knowledge,
there is no material infringement by third parties of any of the Company’s Intellectual Property, and there are no legal
or governmental actions, suits, proceedings or claims pending or, to the Company’s knowledge, threatened, against the Company
or its subsidiaries (i) challenging the Company’s or its subsidiaries’ rights in or to any Intellectual Property,
(ii) challenging the validity or scope of any Intellectual Property owned by the Company or its subsidiaries or (iii) alleging
that the operation of the Company’s or its subsidiaries’ businesses as now conducted infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary rights of a third party, except where any such action, suit,
proceeding or claim would not, individually or in the aggregate, result in a Material Adverse Change, and the Company is unaware
of any facts which would form a reasonable basis for any such claim.
w) All
Necessary Permits, etc. Except as otherwise disclosed in the Disclosure Package and the Prospectus, the Company and its
subsidiaries possess such valid and current certificates, authorizations, permits, licenses, approvals, consents and other authorizations
(collectively, “Approvals”) issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, except for any such Approvals which, singly or in the aggregate, would result
in a Material Adverse Change, and none of the Company or any of its subsidiaries has received any notice of proceedings relating
to the revocation or modification of, or non-compliance with, any such certificate, authorization, permit, license, approval, consent
or other authorization which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Change.
x) Title
to Properties. Except as otherwise disclosed in the Disclosure Package and the Prospectus, the Company and each of its subsidiaries
has good and marketable title to all the properties and assets reflected as owned in the financial statements referred to in Section 1(p) above
(or elsewhere in the Disclosure Package and the Prospectus), in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except such as do not materially and adversely affect the value of such
property and do not materially interfere with the use made or proposed to be made of such property by the Company or such subsidiary.
The real property, improvements, equipment and personal property held under lease by the Company or any subsidiary are held under
valid and enforceable leases, with such exceptions as are not material and do not materially interfere with the use made or proposed
to be made of such real property, improvements, equipment or personal property by the Company or such subsidiary.
y) Tax
Law Compliance. The Company and its subsidiaries have filed all federal, state, local and foreign income and franchise tax
returns and have paid all taxes required to be filed or paid through the date hereof by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of them, except (i) for any taxes, assessments, fines or
penalties as may be being contested in good faith and by appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP, or (ii) where a default to make such filings or payments would not result in a Material
Adverse Change. The Company has made appropriate provisions in the applicable financial statements referred to in Section 1(p) above
in respect of all federal, state, local and foreign income and franchise taxes for all current or prior periods as to which the
tax liability of the Company or any of its subsidiaries has not been finally determined.
z) Company
Not an Investment Company. The Company has been advised of the rules and requirements under the Investment Company Act
of 1940, as amended (the “Investment Company Act”). The Company is not, and after receipt of payment for the
Notes and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the Preliminary
Prospectus and the Prospectus will not be, required to register as an “investment company” within the meaning of the
Investment Company Act.
aa) No
Price Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed
to or that would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes; provided, however, that no such representation is made with respect to any
action undertaken by the Underwriters.
bb) Related
Party Transactions. There are no business relationships between or among the Company or any subsidiary, on one hand, and any
director, officer, member or stockholder of the Company or any affiliate of the Company, on the other hand, that is required by
the Securities Act to be described in the Preliminary Prospectus or the Prospectus that have not been described as required.
cc) No
Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries, directors or officers nor, to the
knowledge of the Company, any agent (while acting as such), employee or affiliate of the Company, or any person otherwise 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 or (iii) 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.
Neither the Company nor any of its subsidiaries has taken any action, directly or indirectly, that would result in a violation
by the Company or any of its subsidiaries of (i) the Foreign Corrupt Practices Act (“FCPA”), (ii) the
U.K. Xxxxxxx Xxx 0000 (the “Bribery Act”), or (iii) any other applicable anti-bribery or anti-corruption
law (including any applicable laws or regulations implementing the OECD Convention on Combating Bribery or Foreign Public Officials
in International Business Transactions), and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with such laws and the regulations and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part
of the proceeds of the offering will be used, directly or indirectly, in violation of the FCPA, the Bribery Act, or any other applicable
law or regulation relating to or prohibiting bribery or other corrupt conduct.
dd) No
Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.
ee) No
Conflict with Sanctions Laws. Neither the
Company nor any of its subsidiaries, directors or officers nor, to the knowledge of the Company, any agent, employee or affiliate
of the Company is an individual, government or entity (“Person”) currently subject to any sanctions administered
or enforced by the United States Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Treasury
Department, or by the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions
authority (“Sanctions”); nor is the Company or any of its subsidiaries located, organized or resident in a country
or territory that is the subject of Sanctions (currently, Cuba, Iran, North Korea, Syria and Crimea); and, except as permitted
by an agency or department of the U.S. government, pursuant to license, regulation, or otherwise, the Company will not directly
or indirectly use the proceeds of the offering of the Notes, or lend, contribute or otherwise make available such proceeds, to
any subsidiary, joint venture partner or other person or entity, (i) to finance the activities of any Person currently subject
to any Sanctions, (ii) to fund any activities of or business with any Person or in any country or territory that is the subject
of comprehensive Sanctions 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, advisor, investor
or otherwise) of Sanctions. To the knowledge of the Company, for the past five years, the Company and its subsidiaries have
not engaged in and are not now engaged in any dealings or transactions with (i) any Person that at the time of the dealing
or transaction was or is the subject or the target of Sanctions or (ii) any country or territory that was or is the subject
of Sanctions.
ff) Compliance
with Environmental Laws. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change or otherwise disclosed in the Disclosure Package and the Prospectus, (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign law, regulation, order, permit or other requirement relating
to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including without limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, “Materials of Environmental Concern”), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environment Concern (collectively,
“Environmental Laws”), which violation includes, but is not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the business of the Company or its subsidiaries under applicable Environmental
Laws, or noncompliance with the terms and conditions thereof, nor has the Company or any of its subsidiaries received any written
communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Company or any
of its subsidiaries is in violation of any Environmental Law; (ii) there is no claim, action or cause of action filed with
a court or governmental authority, no investigation with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory costs, cleanup costs, governmental responses costs,
natural resources damages, property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased
or operated by the Company or any of its subsidiaries, now or in the past (collectively, “Environmental Claims”),
pending or, to the Company’s knowledge, threatened against the Company or any of its subsidiaries or any person or entity
whose liability for any Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually
or by operation of law; and (iii) to the Company’s knowledge, there are no past, present or anticipated future actions,
activities, circumstances, conditions, events or incidents, including, without limitation, the release, emission, discharge, presence
or disposal of any Material of Environmental Concern, that reasonably could be expected to result in a violation of any Environmental
Law, require expenditures to be incurred pursuant to Environmental Law, or form the basis of a potential Environmental Claim against
the Company or any of its subsidiaries or against any person or entity whose liability for any Environmental Claim the Company
or any of its subsidiaries has retained or assumed either contractually or by operation of law. Except as otherwise disclosed in
the Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is subject to any pending or, to the
knowledge of the Company, threatened proceeding under Environmental Law to which a governmental authority is a party and which
is reasonably expected to result in monetary sanctions of $5,000,000 or more.
gg) Xxxxxxxx-Xxxxx
Compliance. There is and has been no failure in any material respect on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related
to loans and Sections 302 and 906 related to certifications.
hh) Company’s
Accounting System. The Company and its subsidiaries maintain effective internal control over financial reporting, as such term
is defined in Rule 13a-15(f) under the Exchange Act.
ii) Internal
Controls and Procedures. Each of the Company and its subsidiaries maintains 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
GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general
or specific authorization; (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; and (E) the interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly
presents the information called for in all material respects and is prepared in accordance with the Commission's rules and
guidelines applicable thereto.
jj) No
Material Weakness in Internal Controls. Except as disclosed in the Disclosure Package and the Prospectus or in 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.
kk) ERISA.
Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, or as
otherwise disclosed in the Disclosure Package and the Prospectus (i) each “employee benefit plan” (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”)) for which the Company or any member of its “Controlled
Group” (defined as any organization that is a member of a controlled group of corporations within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended, and the regulations and published interpretations thereunder (the “Code”))
would have liability (each a “Plan”) is in compliance in all respects with all presently applicable statutes,
rules and regulations, including ERISA and the Code; (ii) with respect to each Plan subject to Title IV of ERISA (A) no
“reportable event” (as defined in Section 4043(c) of ERISA) has occurred for which the Company or any member
of its Controlled Group would have any liability, other than those events as to which the 30-day notice period has been waived;
and (B) since September 1, 2012, neither the Company nor any member of its Controlled Group has incurred or reasonably
expects to incur liability under Title IV of ERISA (other than for contributions to the Plan or premiums payable to the Pension
Benefit Guaranty Corporation (the “PBGC”), in each case in the ordinary course and without default); (iii) no
Plan which is subject to Section 412 of the Code or Section 302 of ERISA has failed, or reasonably expects to fail, to
satisfy the minimum funding standard within the meaning of such sections of the Code or ERISA; (iv) each Plan that is intended
to be qualified under Section 401(a) of the Code is so qualified and, since September 1, 2012, nothing has occurred,
whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification; (v) there
has been no filing of a notice of intent to terminate, treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA or commencement of proceedings by the PBGC to terminate a Plan; (vi) since September 1, 2012, no event
or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Plan exists; (vii) no Plan is considered an “at-risk” plan or a plan in endangered or critical
status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; and (viii) there
has been no incurrence by the Company or any member of its Controlled Group of any liability with respect to a complete or partial
withdrawal from a Plan.
ll) Cyber
Security; Data Protection. Except as would not reasonably be expected to result in a Material Adverse Change or as set forth
in the Disclosure Package and the Prospectus, (i) the Company’s and its subsidiaries’ information technology assets
and equipment, computers, systems, networks, hardware, software, websites, applications and databases (collectively, “IT
Systems”) operate and perform as required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted, and to the Company’s knowledge, are free and clear of all bugs, errors, defects, malware and other
corruptants; (ii) the Company and its subsidiaries maintain commercially reasonable controls, policies, procedures and safeguards
to protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed
and stored therein, and to the Company’s knowledge, since January 1, 2017, there have been no breaches, outages, compromises
or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any person; and (iii) the Company and its subsidiaries are in compliance with all applicable laws or statutes,
all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority,
internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection
of such IT Systems and Personal Data.
Any certificate signed
by an officer of the Company and delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a representation
and warranty by the Company to each Underwriter as to the matters set forth therein.
Section 2.
Purchase, Sale and Delivery of the Notes.
a) The
Notes. The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Notes upon the
terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but
subject to the conditions herein set forth, each Underwriter agrees, severally and not jointly, to purchase from the Company the
respective principal amount of Notes set forth opposite such Underwriter’s name on Schedule A at a purchase price
of 99.229% of the principal amount of the Notes, plus accrued interest, if any, from February 13, 2020 to the Closing Date,
payable on the Closing Date.
b) The
Closing Date. Delivery of the Notes in book-entry form to be purchased by the Underwriters and payment therefor shall be made
at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such other place
as may be agreed to by the Company and the Representatives) at 9:00 a.m., New York City time, on February 20, 2020, or such
other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the
“Closing Date”).
c) Public
Offering of the Notes. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the
public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Execution
Time as the Representatives, in their sole judgment, have determined is advisable and practicable.
d) Payment
for the Notes. Payment for the Notes shall be made at the Closing Date by wire transfer of immediately available funds to the
order of the Company.
It is understood that
the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to accept delivery
of and receipt for, and make payment of the purchase price for, the Notes that the Underwriters have agreed to purchase. The Representatives
may (but shall not be obligated to) make payment for any Notes to be purchased by any Underwriter whose funds shall not have been
received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve
such Underwriter from any of its obligations under this Agreement.
e) Delivery
of the Notes. The Notes to be purchased by each Underwriter hereunder will be represented by one or more definitive global
Notes that will be deposited by or on behalf of the Company with the Depositary or its designated custodian. The Company shall
deliver, or cause to be delivered, the Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor to an account specified by the Company to the Representatives, by
causing the Depositary to credit the Notes to the Representatives for the accounts of the several Underwriters as the Representatives
shall have requested at least two full business days prior to the Closing Date. Copies of the certificates for the global Notes
shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives
may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition
to the obligations of the Underwriters.
Section 3.
Covenants of the Company.
The Company covenants
and agrees with each Underwriter as follows:
a) Compliance
with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the requirements
of Rule 430B under the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of
(i) the effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of
any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional
information and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification
of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes.
The Company will promptly effect the filings necessary pursuant to Rule 424 under the Securities Act 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 under the Securities Act was received for filing by the Commission and, in the event that it was not, it will promptly
file such document. The Company will use its reasonable best efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
b) Filing
of Amendments. During such period beginning on the date of this Agreement and ending on the later of the Closing Date or such
date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection
with sales of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant
to Rule 172 under the Securities Act (the “Prospectus Delivery Period”), the Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration Statement (including any filing under Rule 462(b) of
the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to
the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and (prior to the Closing Date) will not file or use any
such document to which the Representatives or counsel for the Underwriters shall reasonably object.
c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
d) Delivery
of Prospectuses. The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus
as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by
the Securities Act. The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number
of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
e) Continued
Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the completion
of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and
the Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement
in order that the Registration Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure
Package or the Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading,
or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend
or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Company will (i) notify
the Representatives of any such event, development or condition and (ii) promptly prepare and file with the Commission, subject
to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to
make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the Company will furnish to
the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f) Blue
Sky Compliance. The Company shall cooperate with the Representatives and counsel for the Underwriters to qualify or register
the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions
reasonably designated by the Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes, except that, the Company shall not be required
to qualify to transact business or to take any action that would subject it to general service of process in any such jurisdiction
where it is not presently qualified or where it would be subject to taxation as a foreign business. The Company will advise the
Representatives promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Notes
for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the
event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best efforts
to obtain the withdrawal thereof at the earliest possible moment.
g) Use
of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold by it in the manner described under the
caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus.
h) Depositary.
The Company will cooperate with the Underwriters and use its best efforts to permit the Notes to be eligible for clearance
and settlement through the facilities of the Depositary.
i) Periodic
Reporting Obligations. During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission
and the New York Stock Exchange Inc. all reports and documents required to be filed therewith under the Exchange Act.
j) Agreement
Not to Offer or Sell Additional Securities. During the period commencing on the date hereof and ending on the Closing Date,
the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion
of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or establish
an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise
dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of,
any debt securities of the Company substantially similar to the Notes or securities exchangeable for or convertible into debt securities
substantially similar to the Notes (other than as contemplated by this Agreement with respect to the Notes).
k) Final
Term Sheet. The Company will prepare a final term sheet containing only a description of the Notes, in a form approved by the
Underwriters and attached as Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under
the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any
such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
l) Permitted
Free Writing Prospectuses. The Company represents that it has not made, and agrees that, unless it obtains the prior written
consent of the Representatives, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities
Act) 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 included in Annex I hereto. Any such free writing prospectus consented to or deemed to be consented
to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees
that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under
the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission,
legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is
not an “issuer free writing prospectus” as defined in Rule 433 under the Securities Act, and (b) contains
only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134
under the Securities Act or (iii) information that describes the final terms of the Notes or their offering and that
is included in the Final Term Sheet of the Company contemplated in Section 3(k).
m) Notice
of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) under the Securities Act or otherwise ceases
to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a
form satisfactory to the Representatives, (iii) use its best efforts to cause such registration statement of post-effective
amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take
all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration Statement shall include such new registration statement or post-effective amendment,
as the case may be.
n) Filing
Fees. The Company agrees to pay the required Commission filing fees relating to the Notes within the time required by and in
accordance with Rule 456(b)(1) and 457(r) under the Securities Act.
o) Compliance
with Xxxxxxxx-Xxxxx Act. The Company will comply with all applicable securities and other laws, rules and regulations,
including, without limitation, the Xxxxxxxx-Xxxxx Act, and use its reasonable best efforts to cause the Company’s directors
and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation,
the provisions of the Xxxxxxxx-Xxxxx Act.
p) No
Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that
has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation
of the price of any securities of the Company to facilitate the sale or resale of the Notes.
The Representatives,
on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of any one
or more of the foregoing covenants or extend the time for their performance.
Section 4.
Payment of Expenses. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes, (iii) all fees and expenses of
the Company’s counsel, independent public or certified public accountants and other advisors to the Company, (iv) all
costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing
Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and this Agreement, the
Indenture, the DTC Agreement and the Notes, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by
the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Notes for offer and sale under the state securities or blue sky laws, and, if requested
by the Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters
of such qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review, if any, by the FINRA of the terms of the sale of the Notes, (vii) the
fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with
the Indenture and the Notes, (viii) any fees payable in connection with the rating of the Notes with the ratings agencies,
(ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval
of the Notes by the Depositary for “book-entry” transfer, (x) all other fees, costs and expenses referred to in
Item 14 of Part II of the Registration Statement and (xi) all other fees, costs and expenses incurred in connection with
the performance of its obligations hereunder for which provision is not otherwise made in this Section 4. Except as provided
in clauses (v) and (vi) of this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses,
including the fees and disbursements of their counsel.
Section 5.
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay
for the Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on
the part of the Company set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as of the Closing
Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to
each of the following additional conditions:
a) Effectiveness
of Registration Statement. The Registration Statement shall have become effective under the Securities Act and no stop order
suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for
that purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission
for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters and the
Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting
to use of the automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall have been filed
with the Commission in accordance with Rule 424(b) under the Securities Act (or any required post-effective amendment
providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A under
the Securities Act).
b) Accountants’
Comfort Letter. On the date hereof, the Representatives shall have received from Deloitte & Touche LLP, independent
registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives with respect to the audited and unaudited financial statements and certain financial information
contained in the Registration Statement, the Preliminary Prospectus and the Prospectus.
c) Bring-down
Comfort Letter. On the Closing Date, the Representatives shall have received from Deloitte & Touche LLP, independent
registered public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives,
to the effect that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this Section 5,
except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days
prior to the Closing Date.
d) No
Objection. If the Registration Statement and/or the offering of the Notes has been filed with the FINRA for review, the FINRA
shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
e) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the
Closing Date:
(i)
in the reasonable judgment of the Representatives there shall not have occurred any Material Adverse Change;
(ii)
there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (b) of this Section 5
which is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Notes as contemplated by the Prospectus; and
(iii)
there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities
issued or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization”
as such term is defined under Section 3(a)(62) of the Exchange Act.
f) Opinion
of Counsel for the Company. On the Closing Date, the Representatives shall have received the favorable opinions of (i) Xxxxxx &
Xxxxxxx LLP, counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to the Representatives
and (ii) Xxxxx X’Xxxxx, Esq., General Counsel of the Company, dated as of the Closing Date, in form and substance
reasonably satisfactory to the Representatives.
g) Opinion
of Counsel for the Underwriters. On the Closing Date, the Representatives shall have received the favorable opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated as of the Closing Date, with respect to such matters as may
be reasonably requested by the Underwriters.
h) Officers’
Certificate. On the Closing Date, the Representatives shall have received a written certificate executed by the Chairman of
the Board of Directors of the Company or the Chief Executive Officer or a Senior Vice President of the Company and the Chief Financial
Officer or Chief Accounting Officer of the Company, dated as of the Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such
purpose have been instituted or threatened by the Commission;
(ii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting
to use of the automatic shelf registration statement form;
(iii) the representations, warranties and covenants of the Company set forth in Section 1 of this Agreement are true and correct
with the same force and effect as though expressly made on and as of the Closing Date;
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(v) subsequent to the earlier of (A) the Initial Sale Time and (B) the execution and delivery of the Underwriting Agreement,
(A) no downgrading has occurred in the rating accorded the Notes or any other securities issued or guaranteed by the Company
or any of its subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined
in Section 3(a)(62) of the Exchange Act and (B) no such organization has publicly announced that it has under surveillance
or review, or has changed its outlook with respect to, its rating of the Notes or of any other securities issued or guaranteed
by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading); and
(vi) subsequent to the execution and delivery of the Underwriting Agreement, there has been no Material Adverse Change in the condition
(financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
i) FinCEN
Certification. The Company shall have delivered to the Representatives, on or prior to the date of execution of this Agreement,
a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers (the “FinCEN Certification”),
together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation
as the Representatives may reasonably request in connection with the verification of the FinCEN Certification.
j) No
Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date, prevent the issuance or sale of the Notes.
k) Additional
Documents. On or before the Closing Date, the Representatives and counsel for the Underwriters shall have received such information,
documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives
by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part
of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such
termination.
Section 6.
Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the Representatives pursuant to
Section 5 or 11, or if the sale to the Underwriters of the Notes on the Closing Date is not consummated because of any refusal,
inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company
agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably incurred by the Representatives
and the Underwriters in connection with the proposed purchase and the offering and sale of the Notes, including but not limited
to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
Section 7.
Effectiveness of this Agreement. This Agreement shall not become effective until the execution of this Agreement
by the parties hereto.
Section 8.
Indemnification.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange
Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such affiliate, director,
officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon
any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent and controlling person for any and
all expenses (including the (subject to Section 8(c) hereof) reasonable fees and disbursements of counsel chosen by
the Representatives) as such expenses are reasonably incurred by such Underwriter or such affiliate, director, officer, employee,
agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any
loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The indemnity agreement
set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification
of the Company and its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense,
as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement
of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not
misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration Statement, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for use therein; and to reimburse
the Company or any such director, officer or controlling person for any legal and other expense reasonably incurred by the Company
or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the only information furnished
to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set
forth in the third and seventh paragraphs under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus.
The indemnity agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter
may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise
than under the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it
shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party,
to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, such indemnified
party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel
has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed promptly to
assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any
such action (including any impleaded parties) include both such indemnified party and the indemnifying party or any affiliate of
the indemnifying party, and such indemnified party shall have reasonably concluded that either (x) there may be one or more
legal defenses available to it which are different from or additional to those available to the indemnifying party or such affiliate
of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate
of the indemnifying party (it being understood, however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm
of local counsel) for all such indemnified parties, which firm shall be designated in writing by the Representatives and that all
such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of notice from the indemnifying party
to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for
any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified
party shall have employed separate counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable
fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements.
The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise
or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified party.
Section 9.
Contribution. If the indemnification provided for in Section 8 is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other
hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters,
on the other hand, in connection with the offering of the Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received
by the Company, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover
page of the Prospectus bear to the aggregate initial public offering price of the Notes as set forth on such cover. The relative
fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant
to this Section 9 are several, and not joint, in proportion to their respective underwriting commitments as set forth opposite
their names in Schedule A. For purposes of this Section 9, each affiliate, director, officer, employee and agent of
an Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the Company with the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as the Company.
Section 10.
Default of One or More of the Several Underwriters. If, on the Closing Date, any one or more of the several Underwriters
shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal
amount of Notes, which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10%
of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally,
in the proportion to the aggregate principal amounts of such Notes set forth opposite their respective names on Schedule A
bears to the aggregate principal amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or
in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase
such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the
Closing Date, any one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount
of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased
on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Notes are not made
within 48 hours after such default, this Agreement shall terminate without liability of any party to any other party except that
the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination. In any such case,
either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven
days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement,
the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10.
Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
Section 11.
Termination of this Agreement. Prior to the Closing Date, this Agreement may be terminated by the Representatives
by notice given to the Company if at any time (i) trading or quotation in any of the Company’s securities shall have
been suspended or limited by the Commission or the New York Stock Exchange Inc., or trading in securities generally on the New
York Stock Exchange Inc. shall have been suspended or limited, or minimum or maximum prices shall have been generally established
on the New York Stock Exchange Inc. by the Commission or the FINRA; (ii) a general banking moratorium shall have been declared
by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international
hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial,
political or economic conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable
or inadvisable to market the Notes in the manner and on the terms described in the Disclosure Package or the Prospectus or to enforce
contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any Material Adverse
Change; or (v) there shall have occurred a material disruption in commercial banking or securities settlement or clearance
services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as
provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall survive such termination and
remain in full force and effect.
Section 12.
No Fiduciary Duty. The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this
Agreement, including the determination of the public offering price of the Notes and any related discounts and commissions, is
an 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; (ii) in connection with each transaction contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary
of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed
or will assume an advisory, agency or fiduciary responsibility in favor of the Company or its affiliates, stockholders, creditors
or employees or any other party with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective
of whether such Underwriter has advised or is currently advising the Company or its affiliates, stockholders, creditors or employees
or any other party on other matters) and no Underwriter has any obligation to the Company or its affiliates, stockholders, creditors
or employees or any other party with respect to the offering contemplated hereby except the obligations expressly set forth in
this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company or its affiliates, stockholders, creditors or employees or any other
party and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
This Agreement supersedes
all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters with respect
to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
Section 13.
Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties
and other statements of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement
(i) will remain operative and in full force and effect, regardless of any (A) investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter,
the Company, the officers or employees of the Company or any person controlling the Company, as the case may be, or (B) acceptance
of the Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes sold hereunder and
any termination of this Agreement.
Section 14.
Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or telecopied and confirmed
to the parties hereto as follows:
If to the Representatives:
BofA Securities, Inc.
00 Xxxxxxxxxxx Xxxxx, XX0-000-00-00
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention:
High Grade Capital Markets Transaction Management/Legal
and
Mizuho Securities USA LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Debt Capital Markets
and
TD Securities (USA) LLC
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Transaction Management Group
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
00000
Facsimile: (000) 000-0000
Attention: Xxxxxx
Xxxxxxx, Esq.
If to the Company:
Amphenol Corporation
000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X’Xxxxx, Esq.
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
Any party hereto may
change the address for receipt of communications by giving written notice to the others.
Section 15.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any substitute
Underwriters pursuant to Section 10 hereof, and to the benefit of the affiliates, directors, officers, employees, agents and
controlling persons referred to in Sections 8 and 9, and in each case their respective successors, and no other person will have
any right or obligation hereunder. The term “successors” shall not include any purchaser of the Notes as such from
any of the Underwriters merely by reason of such purchase.
Section 16.
Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
Section 17.
Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
Section 18.
General Provisions. This Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or
modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the
parties only and shall not affect the construction or interpretation of this Agreement.
Section 19.
Recognition of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest
and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S.
Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States
or a state of the United States. In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter
becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised
against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the
U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this
Section 19:
“BHC Act Affiliate”
has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. §
1841(k).
“Covered Entity” means
any of the following:
(i) a “covered
entity” as that term is defined in, and interpreted in accordance with, C.F.R. § 252.82(b);
(ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered
FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has
the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
“U.S. Special Resolution Regime”
means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
Each of the parties
hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions
of Section 9, and is fully informed regarding said provisions. Each of the parties hereto further acknowledges that the provisions
of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs
and its business in order to assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
If the foregoing is
in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon
this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
Very truly yours, |
|
|
|
AMPHENOL CORPORATION |
| By: | /s/ Xxxxx X’Xxxxx |
| | Name:
Xxxxx X’Xxxxx Title: Senior Vice President, Secretary and General Counsel |
The foregoing Underwriting
Agreement is hereby confirmed and accepted by the Representatives as of the date first above written.
Bofa securities, inc.
mizuho securities usa
llc
TD SEcurities (usa)
llc
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
By: | /s/ Xxxxxx Xxxxxxxx |
|
| Name: Xxxxxx Xxxxxxxx |
|
|
Title: Managing Director |
|
By: | Mizuho Securities usa llc |
|
| |
|
By: | /s/ X.X. Xxxxxxx |
|
| Name: X.X. Xxxxxxx |
|
|
Title: Managing Director |
|
By: | TD Securities (usa) llc |
|
| |
|
By: | /s/ Xxxx Xxxxxxxx |
|
| Name: Xxxx Xxxxxxxx |
|
|
Title: Director |
|
SCHEDULE
A
Underwriters | |
Aggregate Principal Amount of Notes to be Purchased | |
BofA Securities, Inc. | |
$ | 88,000,000 | |
Mizuho Securities USA LLC | |
$ | 88,000,000 | |
TD Securities (USA) LLC | |
$ | 88,000,000 | |
HSBC Securities (USA) Inc. | |
$ | 50,000,000 | |
Xxxxx Fargo Securities, LLC | |
$ | 50,000,000 | |
Barclays Capital Inc. | |
$ | 12,000,000 | |
Commerz Markets LLC | |
$ | 12,000,000 | |
U.S. Bancorp Investments, Inc. | |
$ | 12,000,000 | |
Total | |
$ | 400,000,000 | |
Schedule A-1
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet dated February 13, 2020
Annex I-1
ANNEX II
Significant Subsidiaries
None
Annex II-1
EXHIBIT A
AMPHENOL CORPORATION
Final Term Sheet
February 13, 2020
Issuer: |
Amphenol Corporation |
|
|
Ratings (Xxxxx’x / S&P)*: |
Baa1 / BBB+ |
|
|
Trade Date: |
February 13, 2020 |
|
|
Settlement Date**: |
February 20, 2020 (T+4) |
|
|
Principal Amount: |
$400,000,000 |
|
|
Maturity Date: |
March 1, 2025 |
|
|
Coupon (Interest Rate): |
2.050% |
|
|
Price to Public: |
99.829% of the principal amount |
|
|
Yield to Maturity: |
2.086% |
|
|
Benchmark Treasury: |
1.375% due January 31, 2025 |
|
|
Spread to Benchmark Treasury: |
+65 bps |
|
|
Benchmark Treasury Price and Yield: |
99-22 ¾ and 1.436% |
|
|
Interest Payment Dates: |
March 1 and September 1, commencing September 1, 2020 |
|
|
Redemption Provision: |
Prior to February 1, 2025 (one month prior to the maturity date of the notes) (the “Par Call Date”), make-whole call at any time at a discount rate of U.S. Treasury Rate plus 10 basis points. On or after the Par Call Date, at any time at a redemption price equal to 100% of the principal amount, plus accrued and unpaid interest to the date of redemption |
|
|
CUSIP/ISIN: |
000000XX0 / US032095AK70 |
|
Other Information
|
Joint Book-Running Managers: |
BofA Securities, Inc.
Mizuho Securities USA LLC
TD Securities (USA) LLC
HSBC Securities (USA) Inc.
Xxxxx Fargo Securities, LLC |
|
|
Co-Managers: |
Barclays Capital Inc.
Commerz Markets LLC
U.S. Bancorp Investments, Inc. |
*Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal
at any time.
**The notes will be ready for
delivery in book-entry form only through the facilities of DTC for the accounts of its participants, including Euroclear Bank S.A./N.V.,
as operator of the Euroclear System, and Clearstream Banking, société anonyme, on or about February 20, 2020,
which is the fourth business day following the date of pricing of the notes (such settlement cycle being referred to as “T+4”).
You should be advised that trading of the notes may be affected by the T+4 settlement. Under Rule 15c6-1 under the Exchange
Act, 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 prior to the date that is two business days preceding
the settlement date will be required, by virtue of the fact that the notes initially will settle in T+4, to specify an alternative
settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the notes who wish to trade the notes
during such period should consult their own advisor.
The issuer has filed a registration
statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should
read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information
about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or dealer participating in the offering will arrange to send you the prospectus if you
request it by calling BofA Securities, Inc. toll-free (000) 000-0000, Mizuho Securities USA LLC toll-free at (000) 000-0000
or TD Securities (USA) LLC toll-free at (000) 000-0000.
No PRIIPs key information
document (KID) has been prepared as the notes are not available to retail in the EEA.
ANY DISCLAIMERS OR OTHER
NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER
NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.