UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 8, 2021
(Exact Name of Registrant as Specified in its Charter)
(State or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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(Address of principle executive offices)
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(Zip Code)
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(703 ) 948-3200
(Registrant’s Telephone Number, Including Area Code)
Not applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 8.01. |
Other Events.
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On May 24, 2021, VeriSign, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with J.P. Morgan Securities LLC, BofA Securities, Inc. and U.S. Bancorp Investments,
Inc., as representatives of the underwriters named in Schedule 1 thereto, with respect to a registered offering (the “Offering”) of $750,000,000 aggregate principal amount of the Company’s 2.700% Senior Notes due 2031 (the “Notes”). The
Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K.
The Offering has been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-3
(Registration No. 333-256347) of the Company (the “Registration Statement”), and the prospectus supplement dated May 24, 2021 and filed with the Securities and Exchange Commission pursuant to Rule 424(b) of the Securities Act on May 26, 2021. The
Offering is expected to close on June 8, 2021. The legal opinion of Gibson, Dunn & Crutcher LLP related to the Offering pursuant to the Registration Statement is filed as Exhibit 5.1 to this Current Report on Form 8-K.
The Company expects that the net proceeds from the Offering will be approximately $741 million, after deducting the underwriters’ discounts and the
estimated expenses of the Offering. The Company intends to use the net proceeds from the Offering, together with cash on hand, to fund the redemption of all of the Company’s outstanding 4.625% Senior Notes due 2023.
The Notes will be issued pursuant to an Indenture (the “Base Indenture”), to be dated as of June 8, 2021, between the Company and U.S. Bank National
Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture (the “Supplemental Indenture”), to be dated as of June 8, 2021, between the Company and the Trustee. The Notes will be represented by a global security,
which is included as an exhibit to the Supplemental Indenture. The form of Base Indenture was previously filed as Exhibit 4.1 to the Registration Statement. The form of Supplemental Indenture and the form of the Notes are filed as Exhibits 4.2 and
4.3, respectively, to this Current Report on Form 8-K.
| Item 9.01. |
Financial Statements and Exhibits.
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(d)
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Exhibits.
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Exhibit No.
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Description
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Underwriting Agreement, dated May 24, 2021, by and among VeriSign, Inc. and J.P. Morgan Securities, LLC, BofA Securities, Inc. and U.S. Bancorp Investments, Inc., as representatives of the
underwriters named in Schedule 1 thereto
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Form of First Supplemental Indenture, to be dated June 8, 2021, between VeriSign, Inc. and U.S. Bank National Association, as trustee
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Form of Global Note representing the 2.700% Senior Notes due 2031 (included in Exhibit 4.2)
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Opinion of Gibson, Dunn & Crutcher LLP relating to the Offering
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Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1)
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Exhibit 104
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Inline XBRL for the cover page of this Current Report on Form 8-K
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Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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VERISIGN, INC.
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/s/ Thomas C. Indelicarto
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Thomas C. Indelicarto
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Executive Vice President, General Counsel and Secretary
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Dated: June 8, 2021
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Exhibit 1.1
$750,000,000
VeriSign, Inc.
2.700% Senior Notes due 2031
Underwriting Agreement
May 24, 2021
J.P. Morgan Securities LLC
BofA Securities, Inc.
U.S. Bancorp Investments, Inc.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
U.S. Bancorp Investments, Inc.
214 North Tryon Street, 26th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
VeriSign, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto
(the “Underwriters”), for whom you are acting as representatives (the “Representatives”), $750,000,000 principal amount of its 2.700% Senior Notes due 2031 (the “Securities”). The Securities will be issued pursuant to an
Indenture to be dated as of June 8, 2021 (the “Base Indenture”) between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a Supplemental Indenture to be dated as of June 8, 2021 (the “Supplemental
Indenture” and together with the Base Indenture, the “Indenture”) between the Company and the Trustee. To the extent there are no additional Underwriters named in Schedule 1 hereto other than you, the term Representatives as used
herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires.
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has
prepared and filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a
registration statement on Form S-3 (File No. 333-256347), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to Rule
430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration Statement.” A base prospectus that omits Rule
430 Information was included in the Registration Statement at the time of its effectiveness, which, as supplemented from time to time, will be used in connection with offerings of securities, including the Securities (the “Base Prospectus”).
As used herein, the term “Preliminary Prospectus” means each preliminary prospectus supplement specifically relating to the Securities, together with the Base Prospectus (and any amendments thereto) filed pursuant to Rule 424(b), and any
prospectus filed with the Commission pursuant to Rule 424(a) under the Securities Act, and the term “Prospectus” means the prospectus supplement, together with the Base Prospectus, in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule
462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this agreement (this “Agreement”) to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange
Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 2:50 p.m., New York City time, on the date hereof, the time when sales of the Securities were first made (the “Time of Sale”),
the Company had prepared the following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated May 24, 2021, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities
Act) listed on Annex A hereto.
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2. Purchase and Sale of the Securities.
(a) The Company agrees to issue and sell the Securities
to the several Underwriters as provided in this agreement (this “Agreement”), and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto at a price equal to 99.062% of the principal amount thereof plus accrued
interest, if any, from June 8, 2021 to the Closing Date (as defined below). The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Company understands that the Underwriters
intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale
Information. The Company acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any
Underwriter.
(c) The Company acknowledges and agrees that each
Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting
or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and
the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Representatives or any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Representatives or such Underwriter, as the case may be, and shall not be on behalf of the Company or any other person.
(d) Payment for and delivery of the Securities will be
made at the offices of Simpson Thacher & Bartlett LLP at 10:00 A.M., New York City time, on June 8, 2021, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives
and the Company may agree upon in writing. The time and date of such payment and delivery is referred to herein as the “Closing Date”.
(e) Payment for the Securities shall be made by wire
transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”), for the account of the Underwriters, of one or more global
notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Global Note will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Company.
The Company represents and warrants to each Underwriter that:
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(a) Preliminary
Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities
Act and did not contain any untrue statement of a material fact or omit to state a material fact (other than Rule 430 Information) necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale
Information. The Time of Sale Information, at the Time of Sale 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 light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material
fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such
communication by the Company or its agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, including a Pricing Term Sheet substantially in the
form of Annex B hereto, which constitute part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing
Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with
the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, at the Time of Sale, 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 light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in
any Issuer Free Writing Prospectus.
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(d) Registration
Statement and Prospectus. The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or threatened by
the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty
with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or supplement
thereto.
(e) Incorporated
Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information, when they were filed with the Commission, conformed or will conform, as the case may be, in all
material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(f) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act,
as applicable, and present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in conformity with generally accepted accounting principles (“U.S. GAAP”) applied on a consistent basis throughout the periods covered thereby (except as otherwise noted therein, and
subject, in the case of interim financial statements, to normal year-end audit adjustments), and the supporting schedules included or incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information
present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents fairly in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement, the Prospectus and the Time of Sale Information 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.
(g) No Material
Adverse Change. Except as disclosed in each of the Time of Sale Information and the Prospectus, since the date of the most recent financial statements of the Company included or incorporated by reference in each of the Registration
Statement, the Time of Sale Information and the Prospectus, (i) there has not been any adverse change in the capital stock or long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set
aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, assets (including intellectual
property), operations or financial condition of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement or incurred any liability or obligation, direct
or contingent; and (iii) 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 disturbance or
dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in the case of clauses (ii) and (iii) above, as could not reasonably be expected to have a Material Adverse Effect (as defined
below).
(h) Organization and
Good Standing. The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing (or the equivalent thereof with respect to the law of foreign countries, if applicable) under the laws of
their respective jurisdictions of organization, are duly qualified to do business and are in good standing (or the equivalent thereof with respect to the law of foreign countries, if applicable) in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are
engaged, except where the failure to be so qualified, in good standing (or the equivalent thereof with respect to the law of foreign countries, if applicable) or have such power or authority would not, individually or in the aggregate, reasonably
be expected to result in a material adverse effect on the business, assets, operations or financial condition of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Agreement and
the Securities (a “Material Adverse Effect”). The subsidiaries of the Company listed on Schedule 2 hereto are the only Significant Subsidiaries of the Company as of March 31, 2021.
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(i) Capitalization.
The Company has the capitalization as set forth in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization”; and all the outstanding shares of capital stock or other equity interests
of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (except as otherwise described in each of the Registration Statement, the Time of Sale
Information and the Prospectus).
(j) Due
Authorization. The Company has all requisite corporate power and authority to execute and deliver this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to perform its obligations
hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and
validly taken.
(k) The Indenture.
The Indenture has been duly authorized by the Company and on the Closing Date will be duly executed and delivered by the Company and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); and on the Closing Date the Indenture will conform in all material respects to the requirements of, and be qualified
under, the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(l) The Securities.
The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(n) Descriptions of
the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
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(o) No Violation or
Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) (other than with respect to the Company and its Significant Subsidiaries), (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(p) No Conflicts. The
execution, delivery and performance by the Company of each of the Transaction Documents to which it is a party, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in
the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(q) No Consents
Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of
each of the Transaction Documents to which it is a party, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for
(i) the registration of the Securities under the Securities Act, (ii) the qualification of the Indenture under the Trust Indenture Act and (iii) such consents, approvals, authorizations, orders and registrations or qualifications as may be
required under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
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(r) Legal
Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings (“Actions”)
pending to which the Company or any of its subsidiaries is or may be a party or to which any property or asset of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; to the best knowledge of the Company, no Actions are threatened or contemplated by any governmental or regulatory authority or by others that,
if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and (i) there are no current or pending Actions that are required under the Securities Act to be described in the
Registration Statement or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that are required under
the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the
Time of Sale Information and the Prospectus.
(s) Independent
Accountants. KPMG LLP, which has audited certain financial statements of the Company and its subsidiaries, is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules
and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(t) Real and
Personal Property. The Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses
of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries or (ii) would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(u) Intellectual
Property. (i) The Company and its subsidiaries own or have the right to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, domain names, copyrights
and copyrightable works, know-how, trade secrets, proprietary technology and all other worldwide intellectual property (collectively, “Intellectual Property”) material to the conduct of their respective businesses; (ii) to the knowledge of
the Company, the Company and its subsidiaries’ conduct of their respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property of any person, except as would not reasonably be expected to have a Material
Adverse Effect; (iii) the Company and its subsidiaries have not received any written notice of any claim relating to Intellectual Property; and (iv) to the knowledge of the Company, the Intellectual Property of the Company and its subsidiaries is
not being infringed, misappropriated or otherwise violated by any person, except as would not reasonably be expected to have a Material Adverse Effect.
(v) No Undisclosed
Relationships. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, or other affiliates of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement and the Prospectus and that is not so described in such documents and in the Time of Sale Information.
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(w) Investment
Company Act. The Company is not, and immediately after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information
and the Prospectus will not be, required to register under the Investment Company Act of 1940, as amended.
(x) Taxes.
The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof, subject to permitted extensions; and except as otherwise disclosed in each of
the Registration Statement, the Time of Sale Information and the Prospectus, to the knowledge of the Company, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its subsidiaries
or any of their respective properties or assets, except any of the foregoing, which would not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(y) Licenses and
Permits. The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary under applicable law for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of
Sale Information and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or except as described in the Time of Sale Information
and the Prospectus; and except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such
license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except for any of the foregoing that would not
reasonably be expected to have a Material Adverse Effect.
(z) No Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the best knowledge of the Company, is contemplated or threatened and the Company is not aware of any existing or
imminent labor disturbance by, or dispute with, the employees of any of the Company’s or any of the Company’s subsidiaries’ principal suppliers, contractors or customers, except as could not reasonably be expected to have a Material Adverse
Effect. Neither the Company nor any of its subsidiaries has received any notice of cancellation or termination with respect to any collective bargaining agreement to which it is a party.
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(aa) Compliance with
Environmental Laws. (i) None of the Company and its subsidiaries has failed to comply with any applicable federal, state, local and foreign laws, rules, regulations, requirements, and orders relating to the protection of the
environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”) or to obtain, maintain or comply with any permit, license or other approval required under any Environmental
Laws; (ii) the Company and its subsidiaries have not received notice of any actual or potential liability under or relating to any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice; and (iii) there are no costs or liabilities associated with Environmental Laws of or
relating to the Company or its subsidiaries, except in the case of each of (i) , (ii) and (iii) above, for any such failure to comply, or failure to receive required permits, licenses or approvals, or cost or liability, as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries are not aware of any issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws
or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and
none of the Company and its subsidiaries anticipates material capital expenditures relating to any Environmental Laws.
(bb) Compliance with
ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance
with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no Plan
has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no Plan is, or is reasonably
expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) or “endangered status” or “critical status” (within the meaning of Section 305 of ERISA); (v) the fair market value of the assets of each Plan exceeds the present
value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur; (vii) each
Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification and (viii) neither the Company nor any
member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and without
default) in respect of a Plan (including a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA), except in each case with respect to the events or conditions set forth in (i) through (viii) hereof, as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(cc) Disclosure
Controls. The Company, together with its subsidiaries, maintains an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and
that has been designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The
Company, together with its subsidiaries, has carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(dd) Accounting Controls. The Company and its subsidiaries maintain
systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with U.S. GAAP. The Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in each of the Registration Statement,
the Time of Sale Information and the Prospectus, to the Company’s best knowledge there are no material weaknesses in the Company’s internal controls.
(ee) Insurance. The
Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, which insurance is in amounts and insures against such losses and risks as the Company believes in its reasonable judgment are
adequate in all material respects to protect the Company and its subsidiaries and their respective businesses; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
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(ff) No Unlawful
Payments. Neither the Company nor any of its subsidiaries, nor to the knowledge of the Company, any director, officer, employee, agent, affiliate or other person 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 an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or
domestic government official or employee , including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political
party or party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or of any applicable law or regulation implementing the OECD Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered,
agreed, requested or taken an act in furtherance of any unlawful bribe or kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted, maintain and enforce policies and procedures reasonably
designed to promote compliance with all applicable anti-bribery and anti-corruption laws.
(gg) Compliance with
Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including any
applicable requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) No Conflicts
with Sanctions Laws. Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, employee, agent, affiliate or other person acting on behalf of the Company or any of its subsidiaries is
currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S.
Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, any European Union member state, Her
Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of
Sanctions (currently, Crimea, Cuba, Iran, North Korea and Syria) (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of
Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transactions contemplated by this
agreement, whether as underwriter, initial purchaser, advisor, investor or otherwise) of Sanctions. For the past five years, the Company and its subsidiaries have not knowingly engaged in, and are not now knowingly engaged in, any dealings or
transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country, except where the Company and its subsidiaries reasonably believed or believe that its or
their engagement in such dealings or transactions with such persons or with any such Sanctioned Country is or was permitted under applicable law, including pursuant to a license or applicable authorization.
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(ii) No Restrictions
on Subsidiaries. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other
distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the
Company or any other subsidiary of the Company, except for any such restrictions (a) contained in the credit agreement, dated as of December 12, 2019, among the Company, the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative
Agent and J.P. Morgan Europe Limited, as London Agent, (b) contained in the indenture, dated as of April 16, 2013, between the Company and U.S. Bank National Association, as trustee, or (c) that will be permitted by the Indenture.
(jj) No Broker’s
Fees. Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(kk) No Registration
Rights. No person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and
sale of the Securities.
(ll) No
Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(mm) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the Time of Sale
Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(nn) Industry
Statistical and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe that the industry statistical and market-related data included or incorporated by reference in each of the Registration
Statement, the Time of Sale Information and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
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(oo) Cybersecurity;
Data Protection. (i) The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate
for, and operate and perform as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, and are, to the knowledge of the Company, free and clear of all bugs, errors, defects, Trojan
horses, time bombs, malware and other corruptants; (ii) the Company and its subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential
information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their
businesses, and there have been no breaches, violations, outages 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 other person, nor any incidents
under internal review or investigations relating to the same; and (iii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all 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 from unauthorized use, access,
misappropriation or modification, except, with respect to each of clauses (i) and (iii), as would not, individually or in the aggregate, have a Material Adverse Effect. The Company and its subsidiaries have taken commercially reasonable actions
to prepare to comply with all applicable laws and regulations with respect to Personal Data that have been announced as of the date hereof as becoming effective within 12 months after the date hereof, and for which any non-compliance with same
would be reasonably likely to create a material liability as soon they take effect.
(pp) Sarbanes-Oxley
Act. There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and
regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(qq) Status under the
Securities Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of
the Securities.
4. Further Agreements of the Company. The
Company covenants and agrees with each Underwriter that:
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(a) Required Filings.
The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet
referred to in Annex B hereto) to the extent required by Rule 433 under the Securities Act; and the Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will
promptly furnish copies of the Prospectus and each Issuer Free Writing Prospectus in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by
Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of
Copies. The Company will deliver, without charge, to the Representatives during the Prospectus Delivery Period as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably request. As used herein, the term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities
as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any
Underwriter or dealer.
(c) Amendments or
Supplements; Issuer Free Writing Prospectuses. At any time during the Prospectus Delivery Period, before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any
amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective, the Company will furnish to the Representatives and counsel for the Underwriters a copy
of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to
which the Representatives reasonably objects unless, in the case of a filing, the Company is required by law to make such filing.
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(d) Notice to the
Representatives. At any time during the Prospectus Delivery Period, the Company will advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any
amendment to the Registration Statement has been filed or becomes effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been
filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other
request by the Commission for any additional information; (v) of the issuance by the Commission or any other governmental or regulatory authority of any order suspending the effectiveness of the Registration Statement or preventing or suspending
the use of any Preliminary Prospectus, the Prospectus, any Time of Sale Information or any Issuer Free Writing Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (vi) of
the occurrence of any event or development within the Prospectus Delivery Period as a result of which the Prospectus, any of the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its commercially reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the
use of any Preliminary Prospectus, any of the Time of Sale Information, Issuer Free Writing Prospectus or the Prospectus, or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the
withdrawal thereof.
(e) Time of Sale
Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall become known as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with law, the Company will notify the Underwriters thereof as soon as practicable and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters
and to such dealers as the Representatives may designate, such amendments or supplements to the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the
statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that
any of the Time of Sale Information will comply with law.
(f) Ongoing
Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall become known as a result of which, in the judgment of the Company or in the opinion of counsel to the Underwriters, the Prospectus as then
amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will notify the Underwriters thereof as soon as practicable and forthwith prepare and, subject to paragraph (c) above, file
with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein)
as may be necessary so that the statements in the Prospectus as so amended or supplemented including such documents to be incorporated by reference therein will not, in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law.
17
(g) Blue Sky
Compliance. The Company will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long
as required for distribution of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning
Statement. The Company will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i) Clear Market.
During the period from the date hereof through and including the Closing Date, the Company will not, without the prior written consent of the Representative, offer, sell, contract to sell or otherwise dispose of any debt securities issued by the
Company and having a tenor of more than one year.
(j) Use of
Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading “Use of Proceeds”.
(k) DTC. The
Company will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(l) No
Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention.
The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
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5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing
prospectus”, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press
release issued by the Company) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any
Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Annex B
hereto without the consent of the Company.
6. Conditions of Underwriters’ Obligations.
The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose pursuant to Section 8A under the Securities Act shall be pending before or threatened
by the Commission, and the Company shall not have received any notification from the Commission pursuant to Rule 401(g)(2) under the Securities Act; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the Representative.
(b) Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade.
Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock 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) under the Exchange Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other
than an announcement with positive implications of a possible upgrading).
(d) No Material
Adverse Change. Subsequent to the execution and delivery of this agreement, no event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the
Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which is, in the judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
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(e) Officer’s
Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and is reasonably satisfactory to the
Representatives (i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer, the representations set forth in Sections 3(b) and 3(d)
hereof are true and correct, (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters.
On the date of this Agreement and on the Closing Date, KPMG LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than
three business days prior to the Closing Date.
(g) Opinion and 10b-5
Statement of Counsel for the Company. Gibson, Dunn & Crutcher LLP, counsel for the Company, shall have furnished to the Representative, at the request of the Company, their written opinion and 10b-5 statement, dated the Closing Date
and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(h) Opinion of
General Counsel of the Company. Thomas C. Indelicarto, Executive Vice President, General Counsel and Secretary of the Company, shall have furnished to the Representative, at the request of the Company, a written opinion, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative.
(i) Opinion and 10b-5
Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement, addressed to the Underwriters, of Simpson Thacher & Bartlett LLP, counsel for the
Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
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(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 Securities; 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 Securities.
(k) Good Standing.
The Representatives shall have received (i) on and as of the Closing Date, satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing in such other jurisdiction as the Representatives may
reasonably request and (ii) as of a recent date, satisfactory evidence of the good standing of the Significant Subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the
Representatives may reasonably request, in the case of clauses (i) and (ii) above, in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(l) DTC.
The Securities shall be eligible for clearance and settlement through DTC.
(m) Indenture and
Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the
Company and duly authenticated by the Trustee.
(n) Additional
Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification
of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, documented legal fees and other expenses reasonably incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or
caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use
therein.
21
(b) Indemnification
of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors and officers who signed the Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such
information consists of the following paragraphs in the Preliminary Prospectus and the Prospectus: under the heading “Underwriting” in the Time of Sale Information and the Prospectus, the third paragraph relating to the terms of the offering by
the Underwriters, the third sentence of the eighth paragraph relating to market making and the ninth and tenths paragraphs relating to overallotment, stabilization and syndicate covering transactions and penalty bids.
22
(c) Notice and
Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify
the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such
proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not,
without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has
failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as they are incurred. Any such
separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by J.P. Morgan Securities LLC and any such separate firm for the Company, its directors and
officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person 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 Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
23
(d) Contribution.
If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (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 from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, 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 shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on
Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to
the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this
Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness of Agreement. This
Agreement shall become effective as of the date first written above.
24
9. Termination. This Agreement may be
terminated in the absolute discretion of the Representative, by advance written notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either
within or outside the United States, that, in the reasonable judgment of the Representative, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults
on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms
contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the
non‑defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information
and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase
hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made.
25
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof
and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to
the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof (but not, except as provided in Section 11(b)
below, legal fees and expenses of the Underwriters’ counsel incurred in connection with any of the foregoing) and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors; (iii) the costs of
reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s counsel and independent accountants; (v) the reasonable documented fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the
reasonable documented related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, and the approval of the Securities for
book-entry transfer by DTC.
(b) If (i) this Agreement is terminated pursuant to
Section 9, (ii) the Company for any reason fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse
the Underwriters for all documented out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby, provided,
however, that if this Agreement is terminated pursuant to Section 10 by reason of the default of one or more Underwriters, the Company shall not be obligated to reimburse any defaulting Underwriter on account of those expenses.
26
12. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to
in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities,
rights of contribution, representations, warranties and agreements of the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this
Agreement, (a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted
or required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act ; and (d) the term “Significant Subsidiary” has the meaning set forth in Rule 1-02(w)(1)(ii) or
(iii) of Regulation S-X under the Exchange Act.
15. Compliance with USA Patriot Act. In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including
the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16. Miscellaneous.
(a) Authority of the
Representatives. Any action by the Underwriters hereunder may be taken by J.P. Morgan Securities LLC, BofA Securities, Inc. and U.S. Bancorp Investments, Inc. on behalf of the Underwriters, and any such action taken by J.P. Morgan
Securities LLC, BofA Securities, Inc. and U.S. Bancorp Investments, Inc. shall be binding upon the Underwriters.
(b) Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179 (fax: 212-834-6081); Attention: Investment Grade Syndicate Desk; BofA Securities, Inc., 1540 Broadway, NY8-540-26-02, New York, New York 10036 (fax:
212-901-7881), Attention: High Grade Debt Capital Markets Transaction Management/Legal; and U.S. Bancorp Investments, Inc., 214 North Tryon Street, 26th Floor, Charlotte, North Carolina 28202 (fax: 704-335-2393); Attention: High Grade Syndicate.
Notices to the Company shall be given to it at 12061 Bluemont Way, Reston, Virginia 20190, (fax: 703-435-4921); Attention: General Counsel.
27
(c) Governing Law.
This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Submission to
Jurisdiction. The Company hereby submits to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Company agrees that a final judgment in any such
suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such judgment.
(e) Waiver of Jury
Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
(f) Recognition of
the U.S. Special Resolution Regimes.
(i) 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.
(ii) 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.
As used in this Section 16(f):
“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:
28
(i) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 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 Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(g) Counterparts.
This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument. The
words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be,
and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
(h) Amendments or
Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings.
The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
29
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
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Very truly yours,
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||
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VERISIGN, INC.
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||
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By /s/ George E. Kilguss, III
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||
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Name: George E. Kilguss, III
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||
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Title: Executive Vice President and Chief Financial Officer
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||
[Signature Page to Underwriting Agreement]
Accepted: As of the date first written above
J.P. MORGAN SECURITIES LLC
BOFA SECURITIES, INC.
U.S. BANCORP INVESTMENTS, INC.
As representatives of the
several Underwriters listed
in Schedule 1 hereto.
J.P. MORGAN SECURITIES LLC
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By
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/s/
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Som Bhattacharyya
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Authorized Signatory
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BOFA SECURITIES, INC.
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By
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/s/
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Laurie Campbell
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Authorized Signatory
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U.S. BANCORP INVESTMENTS, INC.
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By
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/s/
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Julie Brendel
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Authorized Signatory
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[Signature Page to Underwriting Agreement]
Annex B
Filed Pursuant to Rule 433
Registration Statement No. 333-256347
Issuer Free Writing Prospectus dated May 24, 2021
VeriSign, Inc.
$750,000,000
2.700% Senior Notes due 2031
May 24, 2021
This pricing term sheet relates only to VeriSign, Inc.’s offering of its 2.700% Senior Notes due 2031 and should be read together with the Preliminary Prospectus
Supplement dated May 24, 2021 (the “Preliminary Prospectus Supplement”) and the accompanying Prospectus dated May 21, 2021. Terms used and not defined herein have the meanings assigned in the Preliminary Prospectus Supplement.
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Issuer:
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VeriSign, Inc.
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Security:
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2.700% Senior Notes due 2031
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Anticipated Ratings (Moody’s/S&P)*:
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[Intentionally omitted]
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Principal Amount:
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$750,000,000
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Maturity Date:
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June 15, 2031
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Interest Rate:
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2.700%
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Interest Payment Dates:
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June 15 and December 15, commencing December 15, 2021
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Public Offering Price:
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99.712% of principal amount
|
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Yield to Maturity:
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2.733%
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Spread to Benchmark Treasury:
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+112.5 bps
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Benchmark Treasury:
|
UST 1.625% due May 15, 2031
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Make-Whole Call:
|
T+20 bps prior to March 15, 2031
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Par Call:
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On or after March 15, 2031
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Change of Control Repurchase Event:
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Put @ 101% of principal plus accrued and unpaid interest
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Trade Date:
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May 24, 2021
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Settlement Date:
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T+10; June 8, 2021
We expect that delivery of the notes will be made against payment therefor on or about June 8, 2021, which is the tenth business day
following the date of pricing of the notes (such settlement cycle being referred to as “T+10”). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in
two business days unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes prior to two business days before settlement will be required to specify an alternative settlement cycle
at the time of any such trade to prevent failed settlement and should consult their own advisors.
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Denominations/Multiple:
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$2,000 x $1,000
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CUSIP / ISIN:
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92343E AM4 / US92343EAM49
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Joint Book-Running Managers:
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J.P. Morgan Securities LLC
BofA Securities, Inc.
U.S. Bancorp Investments, Inc.
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Use of Proceeds:
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The Issuer intends to use the net proceeds, together with cash on hand, to fund the redemption of all of its 2023 Notes.
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This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities in any
jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
The issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (the “SEC”) to which this
communication relates. Before you invest in any offering, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about Verisign and the offering. You may
get these documents for free by visiting EDGAR on the SEC web site at www.sec.gov. Alternatively, the issuer or any underwriter participating in the offering will arrange to send you the prospectus if you request it by calling J.P. Morgan
Securities LLC at (212) 834-4533, BofA Securities, Inc. at (800) 294-1322 or U.S. Bancorp Investments, Inc. at (877) 558-2607.
*A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
Exhibit 4.2
VERISIGN, INC.
(as Obligor)
and
U.S. BANK NATIONAL ASSOCIATION
(as Trustee)
First Supplemental Indenture
Dated as of June 8, 2021
2.700% Senior Notes due 2031
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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1
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SECTION 1.1
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Definitions
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1
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ARTICLE II TERMS OF THE NOTES
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5
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||
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SECTION 2.1
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Title
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5
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SECTION 2.2
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Aggregate Principal Amount
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5
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SECTION 2.3
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Maturity
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6
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SECTION 2.4
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Interest
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6
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SECTION 2.5
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Place of Payment
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6
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SECTION 2.6
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Optional Redemption
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6
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SECTION 2.7
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Change of Control Repurchase
|
9
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SECTION 2.8
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Issue Date
|
10
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SECTION 2.9
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Issue Price
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10
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SECTION 2.10
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Definitive and Global Notes
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10
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SECTION 2.11
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Denomination
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10
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SECTION 2.12
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Limitation on Liens
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10
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SECTION 2.13
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Limitation on Sale-Leaseback Transactions
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12
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SECTION 2.14
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Amendments to the Base Indenture
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13
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SECTION 2.15
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Counterparts
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EXHIBIT
Exhibit A Form of Senior Note
THIS FIRST SUPPLEMENTAL INDENTURE, between VeriSign, Inc., a Delaware corporation (the “Obligor”), having its principal office at 12061
Bluemont Way, Reston, Virginia 20190, and U.S. Bank National Association, as Trustee (the “Trustee”), is made and entered into as of this 8th day of June, 2021.
RECITALS OF THE OBLIGOR
WHEREAS, the Obligor and the Trustee executed and delivered an Indenture dated as of June 8, 2021 (the “Base Indenture”), to provide for the
issuance by the Obligor from time to time of debt securities;
WHEREAS, capitalized terms used herein, not otherwise defined, shall have the same meanings given them in the Base Indenture;
WHEREAS, pursuant to a board resolution, the Obligor has authorized the issuance of $750,000,000 of its 2.700% Senior Notes due 2031 (the “Senior
Notes”); and
WHEREAS, the Obligor desires to establish the terms of the Senior Notes in accordance with Section 2.01 of the Base Indenture;
NOW, THEREFORE, it is mutually agreed as follows:
SECTION 1.1 Definitions. For all
purposes of this First Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
“Attributable Debt” has the meaning specified in Section 2.13.
“Change of Control” means the occurrence of any of the following: (1)
any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the Obligor (or its successor by merger, consolidation or purchase of all or substantially all of its assets), other than a transaction in which (i) the Obligor becomes a wholly owned Subsidiary of a
holding company and (ii) the direct or indirect holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the voting stock of the Obligor immediately prior to that
transaction; (2) the adoption of a plan relating to the liquidation or dissolution of the Obligor; or (3) the merger or consolidation of the Obligor with or into another person or the merger of another person
with or into the Obligor, or the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation, in one or a series of related transactions) of all or substantially all the assets of the Obligor (determined
on a consolidated basis) to another person, other than a transaction, in the case of a merger or consolidation transaction, following which holders of securities that represented 100% of the voting stock of the Obligor immediately prior to such
transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least 50% of the voting power of the voting stock of the surviving person in such merger
or consolidation transaction immediately after such transaction.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Ratings Event. For the avoidance of doubt, no
change of control repurchase event will be deemed to have occurred in connection with any particular change of control unless and until such change of control has actually been consummated.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having an actual or
interpolated maturity comparable to the remaining term of the Senior Notes to be redeemed (assuming for this purpose that the Senior Notes mature on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the arithmetic average of three Reference Treasury Dealer
Quotations for such Redemption Date after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Quotation Agent obtains fewer than five Reference Treasury Dealer Quotations, the arithmetic average of all Reference
Treasury Dealer Quotations for such Redemption Date.
“Consolidated Total Assets” means, as of the time of determination, the consolidated total assets of the Obligor and its consolidated
Subsidiaries as reflected on the most recent consolidated balance sheet prepared by the Obligor in accordance with GAAP contained in an annual report on Form 10-K or a quarterly report on Form 10-Q timely filed or any amendment thereto (and not
subsequently disclaimed as not being reliable by the Obligor) prior to the time as of which “Consolidated Total Assets” is being determined; provided that “Consolidated Total Assets” shall be adjusted to give effect to each acquisition and
disposition of assets other than in the ordinary course of business (including by way of merger) that has occurred since the date of the balance sheet referred to above and on or prior to the time of determination.
“Cooperative Agreement” means that certain Cooperative Agreement No. NCR-92-18742 between VeriSign, Inc. (as successor to Network Solutions,
Incorporated) and the United States Department of Commerce (as successor to the National Science Foundation), entered into as of January 1, 1993 (as amended from time to time).
“First Supplemental Indenture” means this First Supplemental Indenture, as amended or supplemented from time to time.
“guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise) or (2) entered into for purposes of assuring in any other manner
the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “guarantee” will not include endorsements for collection or deposit
in the ordinary course of business. The term “guarantee,” when used as a verb, has a correlative meaning.
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“incur” means issue, assume, effect a guarantee or otherwise become liable for.
“Independent Investment Banker” means one of J.P. Morgan Securities LLC, BofA Securities, Inc., U.S. Bancorp Investments, Inc. or their
respective successors, as may be appointed from time to time by the Obligor.
“Intellectual Property” means the Registry Agreements, the Cooperative Agreement, all intellectual and similar property of every kind and
nature now owned or hereafter acquired by the Obligor or any Restricted Subsidiary, including inventions, designs, patents, copyrights, trademarks, trade secrets, domain names, confidential or proprietary technical and business information,
know-how, show-how or other similar data or information, software and databases and all embodiments or fixations thereof and related documentation, all additions, improvements and accessions to any of the foregoing and all registrations for any of
the foregoing.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating
of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Obligor.
“Moody’s” means Moody’s Investors Service Inc., or any successor to the rating agency business thereof.
“Par Call Date” of the Senior Notes is March 15, 2031 (three months prior to the Maturity Date of the Senior Notes).
“Principal Facility” means any primary secure data center or resolution site, office space or other facility owned as of the Issue Date of
the Senior Notes or acquired by the Obligor or any Subsidiary of the Obligor after such date and located in the United States and its territories, other than any facility the net book value (computed in accordance with GAAP) of which, as of the
time of such determination, does not exceed 1.0% of Consolidated Total Assets of the Obligor.
“Principal Property” means, as the context may require, any real or immovable property forming part of or constituting any or all of any
Principal Facility.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Obligor.
“Rating Agency” means (1) each of Moody’s and S&P; and (2) if any of Moody’s and S&P ceases to rate the Senior Notes or fails to make
a rating of the Senior Notes publicly available for reasons outside of the control of the Obligor, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Obligor (as
certified by a resolution of the Board of Directors of the Obligor) as a replacement for such rating agency.
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“Ratings Event” means the rating on the Senior Notes is lowered by each of the ratings agencies and the Senior Notes are not rated investment
grade by each of the rating agencies on any date during the period commencing on the first public announcement by the Obligor of any change of control (or pending change of control) and ending 30 days following consummation of such change of
control (which period will be extended following consummation of a change of control for so long as any of the rating agencies has publicly announced that it is considering a possible ratings downgrade); provided that a Ratings Event
otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect to a particular change of control (and thus shall not be deemed a Ratings Event for purposes of the definition of change of control
repurchase event hereunder) if the rating agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the trustee and the Obligor in writing at its or the Obligor’s request
that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable change of control (whether or not the applicable change of control shall have occurred at
the time of the Ratings Event).
“Reference Treasury Dealer” means each of (1) J.P. Morgan Securities LLC and BofA Securities, Inc., or their respective affiliates, and their
respective successors, (2) a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”) selected by U.S. Bancorp Investments, Inc., or its affiliates and (3) two other Primary Treasury Dealers selected by the
Obligor and its successors; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Obligor shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the arithmetic average,
as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed, in each case, as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer as of
5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Registry Agreements” means those certain Registry Agreements between VeriSign, Inc. and the Internet Corporation for Assigned Names and
Numbers, entered into as of November 29, 2012 and July 1, 2017, respectively, as amended.
“Remaining Scheduled Payments” means, with respect to any Senior Note to be redeemed, the remaining scheduled payments of the principal
thereof and interest thereon that would be due after the related Redemption Date to the Par Call Date but for such redemption; provided, however, that, if such Redemption Date is not an Interest Payment Date with respect to such
Senior Note, the amount of the next scheduled interest payment thereon shall be reduced by the amount of interest accrued thereon to such Redemption Date.
“Restricted Subsidiary” means (i) any Subsidiary of the Obligor that would be a “significant subsidiary” of the Obligor within the meaning
set forth in Rule 1-02(w)(ii) or (iii) of Regulation S-X under the Exchange Act as in effect on the Issue Date of the Senior Notes and (ii) any other Subsidiary of the Obligor that holds any Principal Property, in the case of each of the foregoing
clauses (i) and (ii), excluding any Subsidiary that is not organized under the laws of any state of the United States of America or any Subsidiary thereof.
“S&P” means Standard & Poor’s Ratings Group, Inc., or any successor to the rating agency business thereof.
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“Sale and Leaseback Transaction” has the meaning specified in Section 2.13.
“Senior Notes” has the meaning assigned in the Recitals.
“Treasury Rate” means, with respect to any Redemption Date:
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the arithmetic mean (rounded to the nearest 1/100th of a percentage point) of the yields for the immediately preceding full week published in the most recent Federal Reserve Statistical Release H.15 (or if such statistical release is no
longer published, any such other reasonably comparable index published weekly by the Board of Governors of the Federal Reserve System) that has become publicly available prior to the date of determination and which establishes yields on
actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that if no maturity is
within three months before or after the Maturity of the Senior Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or
extrapolated from those yields on a straight line basis rounding to the nearest month; or
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if that release, or any successor release, is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date.
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The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.
“Voting Stock” of any specified Person as of any date means the capital stock of such Person that is at the time entitled to vote generally
in the election of the board of directors of such Person.
ARTICLE II
SECTION 2.1 Title. The Senior Notes
shall constitute a series of Notes having the title “2.700% Senior Notes due 2031” and shall be in the form attached as Exhibit A.
SECTION 2.2 Aggregate
Principal Amount. The aggregate principal amount of the Senior Notes that may be authenticated and delivered under this First Supplemental Indenture shall be unlimited; provided that the Obligor complies with the provisions of this First
Supplemental Indenture.
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SECTION 2.3 Maturity.
The entire outstanding principal amount of the Senior Notes shall be payable on June 15, 2031.
SECTION 2.4 Interest.
The Senior Notes shall accrue interest at a rate of 2.700% per year. Interest shall accrue on the Senior Notes from the most recent Interest Payment Date to or for which interest has been paid or duly provided for (or if no interest has been paid
or duly provided for, from the Issue Date of the Senior Notes), payable semiannually in arrears on June 15 and December 15 of each year. The Record Dates for payment of interest shall be June 1 and December 1 of each year (whether or not a
Business Day).
SECTION 2.5 Place of
Payment. The place where the principal of (and premium, if any) and interest, if any, with respect to the Senior Notes shall be payable shall be the Corporate Trust Office.
(a) If the Obligor elects to
redeem the Senior Notes pursuant to the optional redemption provisions of Section 2.6(j), it shall provide adequate notice to the Trustee and it shall furnish an (i) Officer’s Certificate setting forth (1) the Redemption Date, (2) the principal
amount to be redeemed, and (3) the CUSIP and/or ISIN numbers of the Senior Notes and (ii) Opinion of Counsel to the Trustee.
(b) If fewer than all the Senior
Notes are to be redeemed, the particular Senior Notes to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Senior Notes not previously called for redemption, by lot or on a pro
rata basis to the extent practicable, or, in the case of Senior Notes in global form, the Senior Notes will be selected for redemption based on the depositary’s applicable procedures, such method of selection to provide for the selection for
redemption of portions (equal to the minimum authorized denomination for the Senior Notes or any integral multiple thereof) of the principal amount of Senior Notes of a denomination larger than the minimum authorized denomination for the Senior
Notes.
(c) In the case of partial
redemption by the Obligor, the Trustee shall promptly notify the Obligor in writing of the Senior Notes selected for redemption and the principal amount thereof to be redeemed of each Senior Note if not in global form.
(d) Notice of any redemption of the
Senior Notes in connection with a transaction or an event may, at the Obligor’s discretion, be given prior to the completion or the occurrence thereof. Notice of any redemption of the Senior Notes may, at the Obligor’s discretion, be given
subject to one or more conditions precedent, including, but not limited to, completion of a corporate transaction that is pending (such as an equity or equity-linked offering, an incurrence of Indebtedness or an acquisition or other strategic
transaction involving a change of control in the Obligor or another entity). If such redemption is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in
the event that any or all such conditions shall not have been satisfied or otherwise waived on or prior to the business day immediately preceding the relevant Redemption Date.
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(e) For all purposes of this First
Supplemental Indenture, unless the context otherwise requires, all provisions relating to the redemption of Senior Notes shall relate, in the case of any Senior Note redeemed or to be redeemed only in part, to the portion of the principal of such
Senior Note which has been or is to be redeemed.
(f) Notice of redemption to the
Holders of Senior Notes to be redeemed as a whole or in part at the option of the Obligor shall be given by first-class mail, postage prepaid (or to the extent permitted or required by applicable DTC procedures or regulations with respect to
global notes, sent electronically) not fewer than 10 nor more than 60 days prior to the Redemption Date, to each such Holder at such Holder’s last address appearing in the Security Register. All notices of redemption shall state:
(i) the
Redemption Date;
(ii) the
Redemption Price, or if not then ascertainable, the manner of calculating the Redemption Price;
(iii) if fewer
than all Outstanding Senior Notes are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the Senior Notes to be redeemed from the Holder to whom the notice is given and that on and
after the Redemption Date, upon surrender of such Senior Note, a new Senior Note or Senior Notes in the aggregate principal amount equal to the unredeemed portion thereof shall be issued in accordance with Section 2.6(i);
(iv) that on the
Redemption Date the Redemption Price shall become due and payable upon each Senior Note called for redemption, and that interest, if any, thereon shall cease to accrue from and after said date;
(v) the place
where Senior Notes called for redemption are to be surrendered for payment of the Redemption Price, which shall be the office or agency maintained by the Obligor pursuant to Section 9.02 of the Base Indenture;
(vi) the name and
address of the Paying Agent;
(vii) that the
Senior Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price;
(viii) any
condition precedent to the redemption and related information as required by Section 2.6(d); and
(ix) the CUSIP
and/or ISIN number, and that no representation is made as to the correctness or accuracy of the CUSIP and/or ISIN number, if any, listed in such notice or printed on the Senior Notes.
Notice of redemption of Senior Notes shall be given by the Obligor or, at the Obligor’s request, by the Trustee in the name and at the expense of the Obligor.
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(g) On or prior to 10 a.m., New York
City time, on any Redemption Date, the Obligor shall deposit with the Trustee or with a Paying Agent (or, if the Obligor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 9.03 of the Base Indenture) an amount
of money sufficient to pay the Redemption Price of, and accrued interest on, all the Senior Notes which are to be redeemed on that date.
(h) Notice of redemption having
been given as aforesaid, the Senior Notes (or portions thereof) so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price plus accrued and unpaid interest to the Redemption Date therein specified and
from and after such date (unless the Obligor shall default in the payment of the Redemption Price) such Senior Notes shall cease to bear interest. Upon surrender of such Senior Notes for redemption in accordance with the notice, such Senior Notes
shall be paid by the Obligor at the Redemption Price. Any installment of interest due and payable on or prior to the Redemption Date shall be payable to the Holders of such Senior Notes registered as such on the relevant Record Date according to
the terms and the provisions of Section 2.06 of the Base Indenture. If any Senior Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Redemption Date at
the rate prescribed therefor by the Senior Note.
(i) Any Senior Note that is to be
redeemed only in part and is not a Global Note redeemed pursuant to the depository’s applicable procedures shall be surrendered at the office or agency maintained by the Obligor pursuant to Section 9.02 of the Base Indenture (with, if the Obligor
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Obligor and the Trustee duly executed by, the Holder thereof or the Holder’s attorney duly authorized in writing) and the Obligor
shall execute and the Trustee shall authenticate and deliver to the Holder of such Senior Note without service charge and at the expense of the Obligor, a new Senior Note or Senior Notes, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of such Senior Note so surrendered.
(j) Prior to the Par Call Date, the
Obligor may redeem the Senior Notes at its option at any time, either in whole or in part upon at least 10 days, but not more than 60 days, prior notice given by mail (or to the extent permitted or required by applicable DTC procedures or
regulations with respect to global notes, sent electronically) to the registered address of each Holder of the Senior Notes to be redeemed. If the Obligor elects to redeem the Senior Notes prior to the Par Call Date, it shall pay a Redemption
Price equal to the greater of the following amounts, plus, in each case, accrued and unpaid interest thereon to, but excluding, the Redemption Date:
(i) 100% of the
aggregate principal amount of the Senior Notes to be redeemed on the Redemption Date; or
(ii) the sum of
the present values of the Remaining Scheduled Payments.
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In determining the present values of the Remaining Scheduled Payments the Obligor shall discount such payments to the Redemption Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 20 basis points.
In addition, at any time and from time to time, on or after the Par Call Date, the Obligor may redeem the Senior Notes at its option, either in whole or in part, upon
at least 10 days, but not more than 60 days, prior notice given by mail (or to the extent permitted or required by applicable DTC procedures or regulations with respect to global notes, sent electronically) to the registered address of each Holder
of the Senior Notes to be redeemed, at a redemption price equal to 100% of the aggregate principal amount of the Senior Notes to be redeemed on the redemption date, plus accrued and unpaid interest on such Senior Notes to, but excluding, the
Redemption Date. Any redemption pursuant to this Section 2.6(j) shall be made pursuant to the provisions of Section 2.6(a) through (i).
(a) If a Change of Control
Repurchase Event occurs, unless the Obligor has exercised its right to redeem the Senior Notes as set forth in Section 2.6, the Obligor shall be required to make an offer to each Holder of the Senior Notes to repurchase all or any part (in excess
of $2,000 and in integral multiples of $1,000 in excess thereof) of that Holder’s Senior Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of the Senior Notes repurchased plus any accrued and unpaid
interest on the Senior Notes repurchased to, but excluding, the date of repurchase.
(b) Within 30 days following any
Change of Control Repurchase Event or, at the option of the Obligor, prior to any Change of Control, but after the public announcement of the Change of Control, the Obligor shall mail (or to the extent permitted or required by applicable DTC
procedures or regulations with respect to global notes, send electronically) a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event
and offering to repurchase the Senior Notes on the payment date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or to the extent permitted or required by
applicable DTC procedures or regulations with respect to global notes, sent electronically). The notice shall, if mailed (or to the extent permitted or required by applicable DTC procedures or regulations with respect to global notes, sent
electronically) prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.
(c) The Obligor shall comply with
the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations to the extent those laws and regulations are applicable in connection with the repurchase of the Senior Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with this Section 2.7, the Obligor shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 2.7 by virtue of compliance with such securities laws or regulations.
(d) On the repurchase date
following a Change of Control Repurchase Event, the Obligor shall, to the extent lawful:
(i) accept for
payment all the Senior Notes or portions of the Senior Notes properly tendered pursuant to its offer;
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(ii) deposit
with the Paying Agent an amount equal to the aggregate purchase price in respect of all the Senior Notes or portions of the Senior Notes properly tendered; and
(iii) deliver or
cause to be delivered to the Trustee the Senior Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Senior Notes being purchased by the Obligor.
(e) In the event that portions of
the Senior Notes are properly tendered pursuant to the Obligor’s offer and the Obligor complies with the requirements of Section 2.7(d), the Paying Agent shall promptly pay to each Holder of Senior Notes properly tendered the purchase price for
the Senior Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Senior Note equal in principal amount to any unpurchased portion of any Senior Notes surrendered.
(f) The Obligor shall not be
required to make an offer to repurchase the Senior Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Obligor
and such third party purchases all Senior Notes properly tendered and not withdrawn under its offer.
(g) Should the Obligor choose to
exercise its rights under Section 3.02 of the Base Indenture, it shall no longer be obligated to make an offer to repurchase the Senior Notes following a Change of Control Repurchase Event.
SECTION 2.8 Issue
Date. The Issue Date of the Senior Notes is June 8, 2021; provided that additional Notes, if any, will have a different Issue Date.
SECTION 2.9 Issue
Price. The issue price of the Senior Notes is 99.712% of the aggregate principal amount of the Senior Notes; provided that additional Notes, if any, may have a different issue price.
SECTION 2.10 Definitive
and Global Notes. The Senior Notes are issuable in whole or in part in the form of Global Notes and the Depositary for such Global Notes shall be DTC.
SECTION 2.11 Denomination. The Senior Notes
shall be issued in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.12 Limitation
on Liens. The Obligor will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any lien on any Principal Property or Intellectual Property or upon the
capital stock of any Restricted Subsidiary to secure any Indebtedness of the Obligor or any Restricted Subsidiary without securing the Senior Notes equally and ratably with such Indebtedness for so long as such Indebtedness shall be so
secured, subject to certain exceptions. The foregoing shall not apply to:
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(1) liens existing on May 24, 2021;
(2) liens on assets or property of a Person at the time
it becomes a Subsidiary or is merged with, amalgamated with or consolidated into the Obligor or a Restricted Subsidiary securing only Indebtedness of such Person; provided such Indebtedness was not incurred in connection with such Person
or entity becoming a Subsidiary or such merger, amalgamation or consolidation and such liens do not extend to any assets other than those of the Person becoming a Subsidiary (and such Person’s Subsidiaries, as applicable);
(3) liens existing on assets or property created at the
time of, or within 18 months after, the acquisition, purchase, lease, improvement or development of such assets or property to secure all or a portion of the purchase price or lease for, or the costs of improvement or development of, such assets
or property;
(4) liens to secure any extension, renewal, refinancing
or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any Indebtedness secured by liens referred to above or liens created in connection with any amendment, consent or waiver relating to such
Indebtedness, so long as such lien is limited to all or part of the property which secured (or after-acquired property which was required to secure) the lien extended, renewed or replaced, the amount of Indebtedness secured is not increased
(other than by the amount equal to any costs and expenses (including any premiums, fees or penalties) incurred in connection with any extension, renewal, refinancing or refunding);
(5) liens in favor of only the Obligor or one or more
Subsidiaries granted by the Obligor or a Subsidiary to secure any obligations owed to the Obligor or a Subsidiary of the Obligor;
(6) liens in favor of the Trustee granted in accordance
with the Base Indenture;
(7) carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in good faith;
(8) liens solely on any cash earnest money deposits,
escrow arrangements or similar arrangements made by the Obligor or any Restricted Subsidiary in connection with any letter of intent or purchase agreement for any acquisition or other transaction permitted hereunder;
(9) liens on cash or securing hedging obligations not
entered into for speculative purposes and letters of credit entered into in the ordinary course of business;
(10) liens that are contractual rights of set-off;
(11) pledges and deposits made (i) in the ordinary course
of business in compliance with workers’ compensation, unemployment insurance and other social security laws and (ii) in respect of letters of credit, bank guarantees or similar instruments issued for the account of the Obligor or any Restricted
Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;
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(12) pledges and deposits made (i) to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and (ii) in respect of letters of credit, bank
guarantees or similar instruments issued for the account of the Obligor or any Restricted Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;
(13) liens for taxes, assessments or other governmental
charges or levies not yet delinquent by more than 30 days or not yet subject to penalties for nonpayment or that are being contested in good faith by appropriate proceedings and for which the Obligor or any Restricted Subsidiary, as applicable,
has maintained adequate reserves in accordance with GAAP; and
(14) liens otherwise prohibited by this Section 2.12,
securing Indebtedness which, together with the value of Attributable Debt incurred in Sale and Leaseback Transactions permitted under Section 2.13 below, do not exceed the greater of (i) 10% of Consolidated Total Assets measured at the date of
incurrence of any such lien and (ii) $300.0 million.
SECTION 2.13 Limitation
on Sale-Leaseback Transactions. The Obligor will not, and will not permit any Restricted Subsidiary to, enter into any
arrangement with any Person pursuant to which the Obligor or any Restricted Subsidiary leases any Principal Property that has been or is to be sold or transferred by the Obligor or the Restricted Subsidiary to such Person (a “Sale and Leaseback Transaction”), except that a Sale and Leaseback Transaction is permitted if the Obligor or such Restricted Subsidiary would be entitled to incur
Indebtedness secured by a lien on such property to be leased (without equally and ratably securing the outstanding Senior Notes) in an amount equal to the present value of the lease payments with respect to the term of the lease remaining on
the date as of which the amount is being determined, discounted at the rate of interest set forth or implicit in the terms of the lease, compounded semi-annually (such amount is referred to as the “Attributable
Debt”). The foregoing shall not apply to:
(a) temporary leases for a term, including renewals at the option of the lessee, of not more than three years;
(b) leases between only the Obligor and a Subsidiary of the Obligor or only between Subsidiaries of the Obligor;
(c) leases where the Obligor
applies within 365 days after the sale an amount equal to the greater of the net proceeds of the sale or the Attributable Debt associated with the property to (i) the retirement of long-term secured
Indebtedness; or, if the Obligor has no long-term secured Indebtedness outstanding, long-term Indebtedness that is pari passu with the Senior Notes, or (ii) the purchase of additional property or
assets; and
12
(d) leases of property executed by the time of, or within 12 months after the latest of, the acquisition, the completion of construction or improvement, or the commencement of commercial operation of the property.
SECTION 2.14 Amendments to the Base Indenture.
(a) Sub-clause (b) of the first
paragraph of Section 3.02 of the Base Indenture is hereby amended and restated in its entirety as follows (new text is bolded):
“At the Obligor’s option, either (a) the Obligor shall be deemed to have been Discharged (as defined below) from its obligations with respect to the
Notes of any series (“Legal Defeasance”) and/or (b) the Obligor shall cease to be under any obligation to comply with any term, provision or condition set forth in Sections 4.01(3) and 9.05 and Sections 2.7,
2.12 and 2.13 of the First Supplemental Indenture between the Obligor and the Trustee, dated June 8, 2021 (the “First Supplemental Indenture”) (and any other Sections, covenants or Events of Default applicable to such Notes that are
determined pursuant to Section 2.01 to be subject to this provision) with respect to the Notes of such series at any time after the applicable conditions set forth below have been satisfied (“Covenant Defeasance”):”
(b) The last sentence of the third
to last paragraph of Section 3.02 of the Base Indenture is hereby amended and restated in its entirety as follows (new text is bolded):
“If the Obligor exercises its option under Section 3.02(a), payment of the Notes may not be accelerated because of an Event of Default with respect
thereto. If the Obligor exercises its option under Section 3.02(b), payment of the Notes may not be accelerated because of an Event of Default specified in Section 4.01(3) and Section 4.01(7) and with respect to Section 7.01 and Section 9.05 and Sections 2.12 and 2.13 of the First Supplemental Indenture, and the Obligor shall no longer be obligated to make an offer under Section 2.7 of the First Supplemental Indenture upon the occurrence of a Change of
Control Repurchase Event (as defined in the First Supplemental Indenture).”
(c) In addition to the Events of
Default set forth in Section 4.01 of the Base Indenture, the Senior Notes shall include the following additional Event of Default designated as clause (8) of such Section, which shall be deemed an Event of Default under Section 4.01 of the Base
Indenture:
“(8) a failure by the Obligor to repurchase Senior Notes tendered for repurchase following the occurrence of a Change of Control Repurchase Event
(as defined in the First Supplemental Indenture) in conformity with Section 2.7 of the First Supplemental Indenture.”
(d) In addition to the actions
that may be taken without the consent of Holders, the Senior Notes shall include the following clause (12) to Section 8.01 of the Base Indenture:
13
“(12) to conform the Indenture to the section entitled “Description of Notes” in the prospectus supplement dated May 24, 2021 relating to the Senior
Notes.”
(e) Section 8.02(4) of the Base
Indenture is hereby amended and restated in its entirety as follows (new text is bolded):
“(4) reduce the Redemption Price or the repurchase price of any Senior
Note, change the date on which any Senior Note is subject to redemption or repurchase or add redemption provisions to the Senior Notes;”.
SECTION 2.15 Counterparts. This First Supplemental Indenture and the Senior Notes shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the party by means
of (i) an original manual signature, (ii) a faxed, scanned, or photocopied manual signature or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the
Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code of the State of New York (collectively, “Signature Law”), in each case to the extent
applicable. Each faxed, scanned, or photocopied manual signature, or other electronic signature of this First Supplemental Indenture or the Senior Notes shall for all purposes have the same validity, legal effect, and admissibility in evidence as
an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and
shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute one and the same instrument.
[Remainder of page intentionally left blank; Signatures follow]
14
|
VERISIGN, INC.
|
||
|
By:
|
||
|
Name: George E. Kilguss, III
|
||
|
Title: Executive Vice President and Chief Financial Officer
|
||
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U.S. BANK NATIONAL ASSOCIATION,
|
||
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as Trustee
|
||
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By:
|
||
|
Name: Michael W. McGuire
|
||
|
Title: Vice President, Global Corporate Trust
|
||
[Signature Page to First Supplemental Indenture]
EXHIBIT A
Form of Senior Note
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW
YORK, TO THE OBLIGOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
| No. | $ |
| 2.700% Senior Notes due 2031 | |
|
CUSIP No.
ISIN No.
|
|
VERISIGN, INC., a Delaware corporation, promises to pay to Cede & Co., or registered assigns, the principal sum listed on the Schedule of
Increases or Decreases in Global Note attached hereto on June 15, 2031.
Interest Payment Dates: June 15 and December 15, commencing .
Record Dates: June 1 and December 1.
Additional provisions of this Senior Note are set forth on the other side of this Senior Note.
A-2
IN WITNESS WHEREOF, the parties have caused this instrument to be duly executed.
|
VERISIGN, INC.
|
||
|
By:
|
||
|
Name:
|
||
| Dated: |
Title:
|
|
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, certifies that this is one of
the Senior Notes referred
to in the First Supplemental Indenture.
|
By:
|
||
|
Authorized Signatory
|
A-3
[REVERSE SIDE OF NOTE]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $ . The
following increases or decreases in this Global Note have been made:
|
Date of Exchange
|
Amount of decrease
in Principal
Amount of this
Global Note
|
Amount of increase
in Principal
Amount of this
Global Note
|
Principal amount of
this Global Note
following such
decrease or increase
|
Signature of
authorized signatory
of Trustee
|
||||
A-4
2.700% Senior Notes due 2031
| 1. |
Interest
|
VERISIGN, INC., a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein
called the “Obligor”), promises to pay interest on the principal amount of this Senior Note at the rate per annum shown above. The Obligor shall pay interest semiannually on June 15 and December 15 of each year, commencing . The Record Dates for
payment of interest shall be June 1 and December 1 of each year (whether or not a Business Day). Interest on this Senior Note shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from until the principal hereof is due. Interest shall be computed on the basis of a 360-day year of twelve 30-day months.
| 2. |
Method of Payment
|
The Obligor shall pay interest on this Senior Note (except defaulted interest) to the Persons who are registered Holders at the close of business on
the Record Date. Holders must surrender this Senior Note to a Paying Agent to collect principal payments. Payments in respect of this Senior Note represented by a Global Note (including principal, premium, if any, and interest) shall be made in
immediately available funds to DTC or its nominees, as the case may be, as the Holder of such Global Note. The Obligor shall make all payments in respect of any certificated Senior Note in definitive form (including principal, premium, if any, and
interest) at the office of the Paying Agent, except that, at the option of the Obligor, payment of interest may be made by mailing a check to the registered address of each Holder thereof or, upon request of a Holder of at least $1,000,000
aggregate principal amount of Senior Notes, by wire transfer to an account located in the United States by the payee.
| 3. |
Paying Agent and Registrar
|
Initially, U.S. Bank National Association, a national banking association (the “Trustee”), shall act as Paying Agent and Registrar. The Obligor may
act as Paying Agent.
| 4. |
Indenture
|
The Obligor issued this Senior Note under an Indenture dated as of June 8, 2021 (the “Base Indenture”), between the Obligor and the Trustee, as
supplemented by the First Supplemental Indenture, dated as of June 8, 2021 (the “First Supplemental Indenture”; and the Base Indenture, as supplemented by the First Supplemental Indenture, the “Indenture”). The terms of this Senior Note include
those stated in the Indenture, and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date of the Indenture (the “TIA”). Terms defined in the Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. This Senior Note is subject to all terms and provisions of the Indenture, and Holders (as defined in the Indenture) are referred to the Indenture and the TIA for a statement of such terms
and provisions. In the event of a conflict between any provision of this Senior Note and the Indenture, the Indenture shall govern such provision.
A-5
This Senior Note is a senior unsecured obligation of the Obligor of which an unlimited aggregate principal amount may be at any one time
Outstanding. The Indenture imposes certain limitations on the ability of the Obligor and any Restricted Subsidiary to, among other things, create or incur Liens and enter into certain Sale-Leaseback Transactions. The Indenture also imposes
limitations on the ability of the Obligor to consolidate or merge with or into any other Person or convey, transfer or lease all or substantially all its property.
| 5. |
Optional Redemption
|
Prior to March 15, 2031 (three months prior to the Maturity Date of the Senior Notes) (the “Par Call Date”), the Obligor may redeem this Senior Note
at its option at any time in whole or in part upon at least 10 days, but not more than 60 days, prior notice given by mail (or to the extent permitted or required by applicable DTC procedures or regulations with respect to global notes, sent
electronically) to the registered address of each Holder of the Senior Notes to be redeemed. If the Obligor elects to redeem this Senior Note, it will pay a Redemption Price equal to the greater of the following amounts, plus, in each case,
accrued and unpaid interest thereon to, but excluding, the Redemption Date:
| • |
100% of the aggregate principal amount of this Senior Note; or
|
| • |
the sum of the present values of the Remaining Scheduled Payments.
|
In determining the present values of the Remaining Scheduled Payments the Obligor shall discount such payments to the Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal to the Treasury Rate plus 20 basis points.
In addition, at any time and from time to time, on or after the Par Call Date, the Obligor may redeem the Senior Notes at its option, either in
whole or in part, upon at least 10 days, but not more than 60 days, prior notice given by mail (or to the extent permitted or required by applicable DTC procedures or regulations with respect to global notes, sent electronically) to the registered
address of each Holder of the Senior Notes to be redeemed, at a redemption price equal to 100% of the aggregate principal amount of the Senior Notes to be redeemed on the Redemption Date, plus accrued and unpaid interest on such Senior Notes to,
but excluding, the Redemption Date.
| 6. |
Sinking Fund
|
This Senior Note is not subject to any sinking fund.
| 7. |
Notice of Redemption
|
If the Obligor elects to redeem this Senior Note, it shall provide adequate notice to the Trustee and it shall furnish an (i) Officer’s Certificate
setting forth (1) the Redemption Date, (2) the principal amount to be redeemed, and (3) the CUSIP and/or ISIN numbers of the Senior Notes and (ii) Opinion of Counsel to the Trustee.
A-6
Notice of redemption to the Holders of this Senior Note at the option of the Obligor shall be given by first-class mail, postage prepaid (or to the
extent permitted or required by applicable DTC procedures or regulations with respect to global notes, sent electronically) not fewer than 10 nor more than 60 days prior to the Redemption Date to each such Holder at such Holder’s last address
appearing in the Senior Note Register.
Notice of any redemption to the Holders of this Senior Note in connection with a transaction or an event may, at the Obligor’s discretion, be given
prior to the completion or the occurrence thereof. Notice of any redemption to the Holders of this Senior Note may, at the Obligor’s discretion, be given subject to one or more conditions precedent, including, but not limited to, completion of a
corporate transaction that is pending (such as an equity or equity-linked offering, an incurrence of Indebtedness or an acquisition or other strategic transaction involving a change of control in the Obligor or another entity). If such redemption
is so subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied or otherwise waived on or
prior to the business day immediately preceding the relevant Redemption Date.
| 8. |
Repurchase of this Senior Note at the Option of Holders upon Change of Control Repurchase Event
|
If a Change of Control Repurchase Event occurs, unless the Obligor has exercised its right to redeem this Senior Note as described in the Indenture,
the Obligor will be required to make an offer to each Holder of this Senior Note to repurchase all or any part (in excess of $2,000 and in integral multiples of $1,000 in excess thereof) of the applicable percentage of this Senior Note at a
repurchase price in cash equal to 101% of the aggregate principal amount of such percentage of this Senior Note plus any accrued and unpaid interest on this Senior Note repurchased to, but excluding, the date of repurchase, as provided in,
and subject to the terms of, the Indenture.
| 9. |
Denominations; Transfer; Exchange
|
Senior Notes may be issued in registered form in denominations of $2,000 and integral multiples of $1,000 in excess thereof. A Holder may transfer
or exchange this Senior Note in accordance with the Indenture. Upon any transfer or exchange, the Obligor and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes
required by law or permitted by the Indenture. The Obligor need not register the transfer of or exchange this Senior Note if selected for redemption (except, in the event it will be redeemed in part, the portion not to be redeemed) or to transfer
or exchange this Senior Note for a period of 10 days prior to mailing or providing a notice of redemption of Senior Notes to be redeemed.
| 10. |
Persons Deemed Owners
|
With certain exceptions, the registered Holder of this Senior Note may be treated as the owner of it for all purposes.
A-7
| 11. |
Unclaimed Money
|
If money for the payment of principal or interest, if any, remains unclaimed for two years, the Trustee shall pay the money back to the Obligor at
its request. After any such payment, Holders entitled to the money must look to the Obligor for payment as unsecured general creditors and the Trustee and the Paying Agent shall have no further liability with respect to such monies.
| 12. |
Discharge and Defeasance
|
Subject to certain conditions, the Obligor at any time may terminate some of or all its obligations under this Senior Note and the Indenture if the
Obligor deposits with the Trustee U.S. dollars or non-callable U.S. Government Obligations for the payment of principal of, premium, if any, and interest on, this Senior Note to redemption or maturity, as the case may be.
| 13. |
Amendment, Waiver
|
Subject to certain exceptions set forth in the Indenture, (i) the Indenture may be amended under certain circumstances with the written consent of
the Holders of at least a majority in aggregate principal amount of the Outstanding Senior Notes and (ii) certain defaults may be waived with the written consent of the Holders of at least a majority in principal amount of the Outstanding Senior
Notes. Subject to certain exceptions set forth in the Indenture, without the consent of the Holders of any Senior Notes, the Obligor and the Trustee may amend the Indenture: (i) to evidence the succession of another Person to the Obligor and the
assumption by any such successor of the covenants of the Obligor under the Indenture and the Senior Notes; (ii) to add to the covenants of the Obligor for the benefit of Holders of the Senior Notes or to surrender any right or power conferred upon
the Obligor; (iii) to add any additional events of default for the benefit of Holders of the Senior Notes; (iv) to add to or change any of the provisions of the Indenture as necessary to permit or facilitate the issuance of Senior Notes in bearer
form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Senior Notes in uncertificated form; (v) to secure the Senior Notes or add guarantees with respect to the Senior
Notes; (vi) to add or appoint a successor or separate Trustee; (vii) to cure any ambiguity, defect or inconsistency; provided that the interests of the Holders of the Senior Notes are not adversely affected in any material respect; (viii)
to supplement any of the provisions of the Indenture as necessary to permit or facilitate the defeasance and discharge of Senior Notes; provided that the interests of the Holders of the Senior Notes are not adversely affected in any
material respect; (ix) to make any other change that would not adversely affect the Holders of the Senior Notes; (x) to make any change necessary to comply with any requirement of the Commission in connection with the qualification of the Indenture
or any supplemental Indenture under the TIA; (xi) to conform the Indenture to the section entitled “Description of Notes” in the prospectus supplement dated May 24, 2021 relating to the Senior Notes; and (xii) to reflect the issuance of additional
Senior Notes as permitted by Section 2.01 and Section 2.02 of the Base Indenture.
A-8
| 14. |
Defaults and Remedies
|
If any Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Obligor) with
respect to this Senior Note occurs and is continuing, then either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Senior Notes may declare the principal of all Outstanding Senior Notes, and the
interest to the date of acceleration, if any, accrued thereon, to be immediately due and payable by notice in writing to the Obligor (and to the Trustee if given by Holders) specifying the Event of Default. If an Event of Default relating to a
merger or certain events of bankruptcy, insolvency or reorganization of the Obligor occurs, then the principal amount of all the Senior Notes then Outstanding and interest accrued thereon, if any, shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or the Holders of the Senior Notes, to the fullest extent permitted by applicable law.
Under certain circumstances, the Holders of a majority in principal amount of the Outstanding Senior Notes may rescind any such acceleration with
respect to the Senior Notes and its consequences.
No Holder of this Senior Note may institute any action, unless and until: (i) such Holder has given the Trustee written notice of a continuing Event
of Default with respect to the Senior Notes; (ii) the Holders of at least 25% in aggregate principal amount of the Outstanding Senior Notes have made a written request to the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder; (iii) such Holder or Holders has or have offered the Trustee such reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee has failed to
institute any such proceeding for 60 days after its receipt of such notice, request and offer of indemnity; and (v) no inconsistent direction has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Senior Notes.
| 15. |
Trustee Dealings with the Obligor
|
Subject to certain limitations imposed by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or
pledgee of this Senior Note and may otherwise deal with the Obligor with the same rights it would have if it were not Trustee.
| 16. |
Authentication; Counterparts
|
This Senior Note shall be valid, binding, and enforceable against a party when executed and delivered by an authorized individual on behalf of the
party by means of (i) an original manual signature, (ii) a faxed, scanned, or photocopied manual signature or (iii) any other electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments
of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including any relevant provisions of the Uniform Commercial Code of the State of New York, in each case to the extent applicable. Each faxed, scanned,
or photocopied manual signature, or other electronic signature of this Senior Note shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to
conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any other party and shall have no duty to investigate, confirm or otherwise verify the
validity or authenticity thereof. This Senior Note may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument.
A-9
| 17. |
Governing Law
|
THIS SENIOR NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
| 18. |
CUSIP and ISIN Numbers
|
The Obligor has caused CUSIP and ISIN numbers to be printed on this Senior Note and has directed the Trustee to use CUSIP and ISIN numbers in
notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on this Senior Note or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
A-10
June 8, 2021
VeriSign, Inc.
12061 Bluemont Way
Reston, Virginia 20190
| Re: |
VeriSign, Inc.
|
Registration Statement on Form S-3 (File No. 333-256347)
Ladies and Gentlemen:
We have acted as counsel to VeriSign, Inc., a Delaware corporation (the “Company”) in connection with the preparation and filing with the Securities and
Exchange Commission (the “Commission”) of a Registration Statement on Form S-3, file no. 333-256347 (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”), the prospectus included
therein, the prospectus supplement, dated May 24, 2021, filed with the Commission on May 26, 2021 pursuant to Rule 424(b) of the Securities Act (the “Prospectus Supplement”), and the offering by the Company pursuant thereto of $750,000,000
aggregate principal amount of the Company’s 2.700% Senior Notes due 2031 (the “Notes”).
The Notes will be issued pursuant to the Indenture to be dated as of June 8, 2021 (the “Base Indenture”), between
the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, to be dated as of June 8, 2021, relating to the Notes (the “Supplemental
Indenture,” and together with the Base Indenture, the “Indenture”) between the Company and the Trustee. In connection with the issuance of the Notes, the Company has entered into an Underwriting
Agreement dated as of May 24, 2021 (the “Underwriting Agreement”) with the underwriters named therein (the “Underwriters”). The Indenture, the Underwriting Agreement and the Notes are referred to collectively as the “Note Documents.”
In arriving at the opinions expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of the form of the Base Indenture, the form of the Supplemental Indenture, the form of the Notes, the Underwriting Agreement and such other documents, corporate records,
certificates of officers of the Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render these opinions. In our examination, we have assumed, without independent investigation, the
genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. As to any
facts material to these opinions, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations of officers and other representatives of the Company and
others.
June 8, 2021
Page 2
Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Notes,
when executed and authenticated in accordance with the provisions of the Indenture and issued and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be legal, valid and binding obligations
of the Company.
The opinions expressed above are subject to the following additional exceptions, qualifications, limitations and assumptions:
A. We render no opinion herein as to
matters involving the laws of any jurisdiction other than the State of New York and to the extent relevant for our opinion herein, the Delaware General Corporation Law (the “DGCL”). This opinion is limited to the effect of the current
state of the laws of the State of New York and the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations thereof or such facts.
B. The opinions above are each subject
to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors generally, including without limitation the effect of statutory or other laws regarding
fraudulent transfers or preferential transfers and (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance,
injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law.
C. We express no opinion regarding the
effectiveness of (i) any waiver of stay, extension or usury laws; (ii) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to public policy or federal or state
securities laws or due to the negligence or willful misconduct of the indemnified party; or (iii) any provision that would require payment of any unamortized original issue discount (including any original issue discount effectively created by
payment of a fee).
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal
Matters” in the Registration Statement and the Prospectus Supplement. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP