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8-K - FORM 8-K - JABIL INC | g25034e8vk.htm |
EX-99.1 - EX-99.1 - JABIL INC | g25034exv99w1.htm |
Exhibit 1.1
Jabil Circuit, Inc.
$400,000,000
5.625% Senior Notes due 2020
5.625% Senior Notes due 2020
UNDERWRITING AGREEMENT
October 28, 2010
J.P. MORGAN SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
RBS SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
HSBC SECURITIES (USA) INC.
MIZUHO SECURITIES USA INC.
SCOTIA CAPITAL (USA) INC.
DAIWA CAPITAL MARKETS AMERICA INC.
BBVA SECURITIES INC.
COMERICA SECURITIES, INC.
SUNTRUST ROBINSON HUMPHREY, INC.
U.S. BANCORP INVESTMENTS, INC.
c/o J.P. Morgan Securities LLC
383 Madison Avenue, 27th Floor
New York, NY 10179
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
RBS SECURITIES INC.
BNP PARIBAS SECURITIES CORP.
HSBC SECURITIES (USA) INC.
MIZUHO SECURITIES USA INC.
SCOTIA CAPITAL (USA) INC.
DAIWA CAPITAL MARKETS AMERICA INC.
BBVA SECURITIES INC.
COMERICA SECURITIES, INC.
SUNTRUST ROBINSON HUMPHREY, INC.
U.S. BANCORP INVESTMENTS, INC.
c/o J.P. Morgan Securities LLC
383 Madison Avenue, 27th Floor
New York, NY 10179
Ladies and Gentlemen:
Jabil Circuit, Inc., a corporation organized under the laws of Delaware (the Company),
proposes to issue and sell to the several parties named in Schedule I hereto (the Underwriters),
for whom J.P. Morgan Securities LLC (the Representative) is acting as the representative,
$400,000,000 principal amount of its 5.625% Senior Notes due 2020 (the Securities). The
Securities are to be issued pursuant to the provisions of the indenture dated as of January 16,
2008 (the Indenture) between the Company and The Bank of New York Trust Company, N.A., as trustee
(the Trustee). The use of the neuter in this Agreement shall include the feminine and masculine
wherever appropriate. Certain terms used herein are defined in Section 23 hereof.
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 Commission in
connection with the sale of Securities under the Securities Act a registration statement on Form
S-3 (File No. 333-154835), including a base prospectus (the Base 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; and as used
herein, the term Preliminary Prospectus means any preliminary prospectus supplement to the Base
Prospectus that describes the Securities and the offering thereof that omits Rule 430 Information
and is used prior to filing of the Prospectus, together with the Base Prospectus; and the term
Prospectus means the prospectus supplement relating to the Securities, 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. Any
reference in 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, as the case may be, shall be deemed to
refer to and include any documents filed after the date of such Registration Statement, Preliminary
Prospectus or Prospectus, as the case may be, under the Exchange Act that are deemed to be
incorporated by reference in such Registration Statement, Preliminary Prospectus or Prospectus, as
the case may be. 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 the Execution Time, the Company had prepared the following information
(collectively, the Disclosure Package): a Preliminary Prospectus dated October 28, 2010, and
each Issuer Free Writing Prospectus (as defined below) listed on Schedule II hereto.
2. Representations and Warranties. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 2.
(a) 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 any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company
makes no representation or warranty as to the information contained in or omitted from the
Preliminary Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf of the
Underwriters through the Representative specifically for inclusion therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 11(b) hereof.
(b) At the Execution Time, the Disclosure Package did not, and at the Closing Date will
not, contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representative
specifically for use therein, it being understood and agreed that the only such
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information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 11(b) hereof.
(c) 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 Schedule II hereto and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the Representative. Each
such Issuer Free Writing Prospectus complied 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 filed prior to the first use of such Issuer Free Writing Prospectus,
did not, and at the Closing Date will not, contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to information
contained in or omitted from each such Issuer Free Writing Prospectus in reliance upon and
in conformity with information furnished in writing to the Company by or on behalf of the
Underwriters through the Representative specifically for inclusion therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 11(b) hereof.
(d) The Registration Statement is an automatic shelf registration statement as
defined under Rule 405 of the Securities Act that has been filed with the Commission not
earlier than three years prior to the date hereof; and no notice of objection of the
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 in all material respects with the
Securities Act and the Trust Indenture Act, and did 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 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; provided that the Company
makes no representation and warranty with respect to
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(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 furnished
in writing to the Company by or on behalf of the Underwriters through the Representative
specifically for inclusion therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists of the information
described as such in Section 11(b) hereof.
(e) The documents incorporated by reference or deemed to be incorporated by reference
in the Disclosure Package and the Prospectus, at the time they were or hereafter are filed
with the Commission, complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the Securities Act or the Exchange Act, as
applicable, and, when read together with the other information in the Registration
Statement, the Disclosure Package and the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Registration Statement, the Prospectus or the
Disclosure Package, when such documents are filed with the Commission, will comply, as the
case may be, in all material respects with the requirements of the Securities Act or the
Exchange Act, and, when read together with the other information in the Registration
Statement, the Disclosure Package and the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(f) There are no persons or entities with registration rights or other similar rights
to have securities registered pursuant to a registration statement or otherwise registered
by the Company under the Act that have not been duly and validly waived.
(g) The Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Registration
Statement, the Disclosure Package and the Prospectus will not be, an investment company as
defined in the Investment Company Act.
(h) The Company has not paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company (except as contemplated in this
Agreement).
(i) The Company has not taken, directly or indirectly, any action designed to or that
has constituted or that might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(j) The Company (i) has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Registration Statement, the
Disclosure Package and the Prospectus; and (ii) is duly qualified to do
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business as a foreign corporation and is in good standing under the laws of each
jurisdiction that requires such qualification, whether by reason of the ownership or leasing
of property or the conduct of business, except in the case of this clause (ii), where the
failure so to qualify or to be in good standing would not result in a Material Adverse
Effect (as defined below).
(k) All the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
(l) Each significant subsidiary of the Company (as such term is defined in Rule 1-02
of Regulation S-X) (each a Significant Subsidiary and, collectively, the Significant
Subsidiaries) has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, in which it is chartered
or organized with full corporate power and authority to own or lease, as the case may be,
and to operate its properties and to conduct its business as described in the Registration
Statement, the Disclosure Package and the Prospectus and is duly qualified to do business as
a foreign corporation and is in good standing under the laws of jurisdiction that requires
such qualification, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Significant Subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of such
Significant Subsidiary.
(m) The statements in the Registration Statement, the Disclosure Package and the
Prospectus under the headings Description of Notes, and Material U.S. Federal Income Tax
Considerations, fairly summarize the matters therein described.
(n) This Agreement has been duly authorized, executed and delivered by the Company; the
Indenture has been duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Trustee, constitutes a legal, valid,
binding instrument enforceable against the Company in accordance with its terms (subject, as
to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors rights generally from time to time in effect
and to general principles of equity; and the Securities have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters, will have been duly executed and delivered by the
Company and will constitute the legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors rights
generally from time to time in effect and to general principles of equity). Upon
effectiveness of the Registration Statement, the Indenture was duly qualified under the
Trust Indenture Act. The Securities will be
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substantially in the form heretofore delivered to the Underwriters and will conform in
all material respects to all statements relating thereto contained in the Registration
Statement, the Disclosure Package and the Prospectus; and each Holder (as defined in the
Indenture) of Securities will be entitled to the benefits of the Indenture.
(o) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein or in the Indenture, except for registration of the Securities under the Securities
Act, the qualification of the Indenture under the Trust Indenture Act and such as may be
required under the blue sky laws of any jurisdiction in which the Securities are offered and
sold.
(p) None of the execution and delivery of this Agreement or the Indenture, the issuance
and sale of the Securities, or any other of the transactions herein or therein contemplated,
or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, (i) the charter or by-laws or comparable
constituting documents of the Company or any of its subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties, except in the
case of clause (ii) where such conflict with, breach, violation or imposition would not
result in a Material Adverse Effect.
(q) The consolidated historical financial statements and schedules of the Company and
its subsidiaries on a consolidated basis included or incorporated by reference in the
Registration Statement, Disclosure Package and the Prospectus present fairly the financial
condition, results of operations and cash flows of the Company and its subsidiaries on a
consolidated basis as of the dates and for the periods indicated and have been prepared in
conformity with generally accepted accounting principles in the United States (US GAAP)
applied on a consistent basis throughout the periods involved (except as otherwise noted
therein); the summary selected financial data set forth under the caption Summary Selected
Consolidated Financial Data in the Preliminary Prospectus and the Prospectus fairly
present, on the basis stated in the Preliminary Prospectus and the Prospectus, the
information included therein; the pro forma financial statements included or incorporated by
reference in the Registration Statement, the Disclosure Package and the Prospectus present
fairly the information shown therein and include assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give appropriate effect to those
assumptions; the pro forma adjustments reflect the proper application of those adjustments
to the historical financial statement amounts in the pro forma financial statements included
or incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus; the pro forma financial statements included or incorporated by reference in the
Registration Statement, the Disclosure Pack-
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age and the Prospectus comply as to form with the applicable accounting requirements of
Regulation S-X; and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements.
(r) 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 or its
or their property is pending or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the performance of this
Agreement, the Indenture or the consummation of any of the transactions contemplated hereby
or thereby or (ii) could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business affairs or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business (a Material Adverse Effect), except as set forth in or
contemplated or incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus (exclusive of any amendment or supplement thereto).
(s) Each of the Company and its subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(t) Neither the Company nor any of its subsidiaries is in violation or default of (i)
any provision of its charter or bylaws or comparable constituting documents; (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or such subsidiary or any of its properties, as
applicable, except (solely with regard to (ii) and (iii)), where such violation or default
would not result in a Material Adverse Effect.
(u) KPMG LLP, who have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedule included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus, are independent public
accountants with respect to the Company as required by the Securities Act and the Public
Company Accounting Oversight Board; and there have been no disagreements with any
accountants or reportable events (as defined in Item 304 of Regulation S-K promulgated by
the Commission), in either case as required to be disclosed in the Registration Statement,
Disclosure Package and Prospectus or elsewhere pursuant to such Item 304, other than such
disagreements or reportable events that have already been disclosed pursuant to public
filings with the Commission.
(v) There are no stamp or other issuance or transfer taxes or duties or other similar
fees or charges required to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale of the Securities.
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(w) The Company has filed all applicable tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the failure so to file would
not have a Material Adverse Effect and except as set forth in or contemplated in the
Registration Statement, Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto)) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect and except as set
forth in or contemplated in the Registration Statement, the Disclosure Package and the
Prospectus (exclusive of any amendment or supplement thereto).
(x) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or its subsidiaries
principal suppliers, contractors or customers, except as would not have a Material Adverse
Effect and except as set forth in or contemplated in the Registration Statement, the
Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(y) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiarys
capital stock, from repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiarys property or assets to the Company
or any other subsidiary of the Company, except as described in or contemplated in the
Registration Statement, the Disclosure Package or the Prospectus (in each case, exclusive of
any amendment or supplement thereto).
(z) The Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and effect; the
Company and its subsidiaries are in compliance with the terms of such policies and
instruments; there are no claims by the Company or any of its subsidiaries under any such
policy or instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause; neither the Company nor any of its subsidiaries has
been refused any insurance coverage sought or applied for; and neither the Company nor any
of its subsidiaries has 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 from
similar insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect except as set forth in or contemplated in the Registration
Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto).
(aa) The Company and its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by all applicable authorities necessary to conduct their
respective businesses, and neither the Company nor any of its subsidiaries has received any
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notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect, except as set
forth in or contemplated in the Registration Statement, the Disclosure Package and the
Prospectus (exclusive of any amendment or supplement thereto).
(bb) The Company and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions undertaken by the
Company or such subsidiary, as applicable, are executed in accordance with the general or
specific authorizations of management of the Company or such subsidiary, as applicable, (2)
such transactions are recorded as necessary to permit preparation by the Company or such
subsidiary, as applicable, of financial statements in conformity with US GAAP and for the
Company or such subsidiary, as applicable, to maintain accountability of its assets, (3)
access to assets of the Company or such subsidiary, as applicable, is permitted only in
accordance with general or specific authorization of management of the Company or such
subsidiary, as applicable, and (4) the recorded accountability for assets of the Company or
such subsidiary, as applicable, is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences; and (ii) the Company and
its subsidiaries internal controls over financial reporting are effective.
(cc) The Company and its subsidiaries (i) are in compliance with any and all applicable
laws and regulations relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants (Environmental
Laws); (ii) have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) have not received notice of any actual or potential liability under
any Environmental Law, except where such non-compliance with Environmental Laws, failure to
receive required permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a Material Adverse Effect, except as set forth in or contemplated
in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto). Except as set forth in the Registration Statement, the
Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has
been named as a potentially responsible party under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended.
(dd) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the
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Registration Statement, the Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto).
(ee) The Company and its subsidiaries maintain an effective system of disclosure
controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is 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 Commissions rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the
Companys management as appropriate to allow timely decisions regarding required disclosure.
The Company and its subsidiaries have carried out evaluations of the effectiveness of their
disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(ff) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
and the money laundering statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the Money Laundering Laws) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(gg) None of the Company, any of its subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (OFAC); 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, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(hh) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the FCPA), including, without limitation, making use
of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
foreign official (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its Affiliates
have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
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(ii) The Company and its subsidiaries own, possess, license or have other rights to use
on reasonable terms, all patents, trade and service marks, trade names, copyrights, domain
names (in each case including all registrations and applications to register same),
inventions, trade secrets, technology, know-how, and other intellectual property,
(collectively, the Intellectual Property) necessary for the conduct of the Companys
business as now conducted or as proposed in the Registration Statement, the Disclosure
Package and the Prospectus to be conducted. Except as set forth or incorporated by
reference in the Registration Statement, the Disclosure Package and the Prospectus, (i) the
Company owns, or has rights to use under license, all such Intellectual Property free and
clear in all material respects of all adverse claims, liens or other encumbrances; (ii) to
the knowledge of the Company, there is no material infringement by third parties of any such
Intellectual Property; (iii) there is no pending or, to the Companys knowledge, threatened
action, suit, proceeding or claim by any third party challenging the Companys or its
subsidiaries rights in or to any such Intellectual Property, and the Company is unaware of
any facts which would form a reasonable basis for any such claim; (iv) there is no pending
or, to the Companys knowledge, threatened action, suit, proceeding or claim by any third
party challenging the validity, scope or enforceability of any such Intellectual Property,
and the Company is unaware of any facts that would form a reasonable basis for any such
claim; (v) there is no pending or, to the Companys knowledge, threatened action, suit,
proceeding or claim by any third party that the Company or any subsidiary infringes or
otherwise violates any patent, trademark, copyright, trade secret or other proprietary
rights of any third party, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim; and (vi) to the knowledge of the Company, there is no
valid and subsisting patent or published patent application that would preclude the Company,
in any material respect, from practicing any such Intellectual Property, except (with regard
to each of (i) through (v)) as could not reasonably be expected to result in a Material
Adverse Effect.
(jj) The statements included in the Preliminary Prospectus and the Prospectus under the
captions Risk Factors We are subject to the risk of increased taxes, Risk Factors
Intellectual property infringement claims against our customers or us could harm our
business, and Risk Factors Compliance or the failure to comply with current and future
environmental, product stewardship and producer responsibility laws or regulations could
cause us significant expense, and the statements incorporated by reference into the
Registration Statement, Preliminary Prospectus and the Prospectus from the Annual Report on
Form 10-K for the fiscal year ended August 31, 2010 under the captions Business
Environmental and Legal Proceedings, insofar as such statements summarize legal matters,
agreements, documents, or proceedings discussed therein, are accurate and fair summaries of
such legal matters, agreements, documents or proceedings.
(kk) 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.
Any certificate signed by any officer of the Company and delivered to the Representative or
counsel for the Underwriters in connection with the offering of the Securities shall
-11-
be deemed a representation and warranty by the Company, as to the matters covered thereby, to
each Underwriter.
3. Qualified Independent Underwriter. (a) BBVA Securities Inc. (BBVA) hereby
represents and warrants to, and agrees with, the Company and the Underwriters that with respect to
the offering and sale of the Securities as described in the Disclosure Package and the Prospectus:
(i) BBVA constitutes a qualified independent underwriter within the meaning
of Rule 2720(f)(12) of the Rules of Conduct of the Financial Industry Regulatory
Authority, Inc. (FINRA);
(ii) BBVA has participated in the preparation of the Disclosure Package and the
Prospectus and has exercised the usual standards of due diligence in respect
thereto; and
(iii) BBVA has undertaken the legal responsibilities and liabilities of an
underwriter under the Securities Act specifically including those inherent in
Section 11 thereof.
(b) The Company agrees to cooperate with the Underwriters and BBVA to enable the Underwriters
to comply with Rule 2720(a) of the Rule of Conduct of FINRA and BBVA to perform the services
contemplated by this Agreement.
4. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 98.000% of the principal amount thereof, plus accrued interest from November 2, 2010 to
the Closing Date, the principal amount of Securities set forth opposite such Underwriters name in
Schedule I hereto. BBVA is acting as a qualified independent underwriter within the meaning of
Rule 2720 of the Rules of Conduct of FINRA. BBVA, in its capacity as qualified independent
underwriter and not otherwise, is sometimes referred to herein as the QIU. As compensation for
the services of the QIU hereunder, the Company agrees to pay the QIU $5,000 on the Closing Date.
5. Delivery and Payment. Delivery of and payment for the Securities shall be made at
10:00 A.M., New York City time, on November 2, 2010, or at such time on such later date not more
than three Business Days after the foregoing date as the Representative shall designate, which date
and time may be postponed by agreement between the Representative and the Company or as provided in
Section 12 hereof (such date and time of delivery and payment for the Securities being herein
called the Closing Date). Delivery of the Securities shall be made to the Representative for the
respective accounts of the several Underwriters against payment by the several Underwriters through
the Representative of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to the account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository Trust Company and any other
relevant clearing system unless the Representative shall otherwise instruct.
-12-
6. Offering by Underwriters. 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 Representative is advisable, and initially to offer the
Securities on the terms set forth in the Prospectus. 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.
7. Agreements. The Company agrees with each Underwriter that:
(a) 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 term sheet in the form of Schedule II
hereto) to the extent required by Rule 433 under the Securities Act; and will file promptly
all reports and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Securities; and the Company will
furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not
previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in such quantities
as the Representative may reasonably request. The Company will pay the registration fees for
this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act
(without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making,
preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration Statement or
the Prospectus, whether before or after the time that the Registration Statement becomes
effective the Company will furnish to the Representative and counsel for the Underwriters a
copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and
will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free
Writing Prospectus or file any such proposed amendment or supplement to which the
Representative reasonably objects.
(c) Notice to the Representative. The Company will advise the Representative promptly,
and confirm such advice in writing, (i) when any amendment to the Registration Statement has
been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment
to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request
by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission relating to
the Registration Statement or any other request by the Commission for any additional
information; (iv) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of
any event within the Prospectus Delivery Pe-
-13-
riod as a result of which the Prospectus, the Disclosure Package or any Issuer Free
Writing Prospectus as then amended or supplemented would include any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances existing when the
Prospectus, the Disclosure Package or any such Issuer Free Writing Prospectus is delivered
to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the
receipt by the Company of any notice with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and the Company will use its reasonable best efforts to
prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus 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.
(d) If at any time prior to the Closing Date (i) any event shall occur or condition
shall exist as a result of which the Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Disclosure Package to comply
with law, the Company will immediately notify the Underwriters thereof 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 Representative may designate, such
amendments or supplements to the Disclosure Package as may be necessary so that the
statements in the Disclosure Package as so amended or supplemented will not, in the light of
the circumstances, be misleading or so that the Disclosure Package will comply with law.
(e) The Company will deliver, without charge, to each Underwriter (A) a conformed copy
of the Registration Statement as originally filed and each amendment thereto, in each case
including all exhibits and consents filed therewith and (B) during the Prospectus Delivery
Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each Issuer Free
Writing Prospectus as the Representative may reasonably request. As used herein, the term
Prospectus Delivery Period means such period of time after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered (or required to be delivered
but for Rule 172 under the Securities Act) in connection with sales of the Securities by any
Underwriter or dealer.
(f) If during the Prospectus Delivery Period, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement of a
material fact required to be stated therein or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made or the circumstances then prevailing, not
misleading, or if it should be necessary to amend or supplement the Prospectus to comply
-14-
with applicable law, the Company will promptly (i) notify the Representative of any
such event; (ii) subject to the requirements of Section 6(b), prepare and file with the
Commission an amendment or supplement that will correct such statement or omission or effect
such compliance; and (iii) supply any supplemented or amended Prospectus to the several
Underwriters, such dealers as the Representative may designate and counsel for the
Underwriters without charge in such quantities as they may reasonably request.
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale by the Underwriters under the laws of such jurisdictions as the Representative may
designate and will maintain such qualifications in effect so long as required for the sale
of the Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those arising out of
the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
The Company will promptly advise the Representative of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(h) The Company will cooperate with the Representative and use its best efforts to
permit the Securities to be eligible for clearance and settlement through The Depository
Trust Company and any other relevant clearing system.
(i) The Company will not for a period of 60 days following the Execution Time, without
the prior written consent of J.P. Morgan Securities LLC offer, sell, contract to sell,
pledge, otherwise dispose of, or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Company or any
Affiliate of the Company or any person in privity with the Company or any Affiliate of the
Company), directly or indirectly, or announce the offering, of any debt securities issued or
guaranteed by the Company (other than the Securities).
(j) The Company will not take, directly or indirectly, any action designed to, or that
has constituted or that might reasonably be expected to, cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation of the Indenture and the issuance of the Securities and the fees of the
Trustee; (ii) the preparation, printing or reproduction of the materials contained in the
Registration Statement, Disclosure Package and the Prospectus and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such copies of the
materials contained in the Registration Statement, Disclosure Package and the Prospectus,
and all amendments or supplements to either of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of certificates for the
Securities; (v) any stamp or transfer taxes in connection with the original issuance
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and sale of the Securities; (vi) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Securities; (vii) any
registration or qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states and any other jurisdictions, (including filing fees and
the reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (viii) the transportation and other reasonable expenses
incurred by or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the Companys
accountants and the fees and expenses of counsel (including local and special counsel) for
the Company; and (x) all other costs and expenses incident to the performance by the Company
of its obligations hereunder. Notwithstanding the foregoing, subject to Sections 10 and 11
hereof, the Underwriters shall solely be responsible for all of their expenses incurred in
connection with the sale of the Securities provided for herein (including, without
limitation, fees, disbursements and expenses of legal advisors for the Underwriters).
(l) Earnings Statement. The Company will make generally available to its security
holders and the Representative as soon as practicable an earnings 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.
(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.
8. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any free writing prospectus, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration Statement
and any press release issued by the Company) other than (i) a free writing prospectus that,
solely as a result of use by such underwriter, would not trigger an obligation to file such
free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free
Writing Prospectus listed on Schedule II or prepared pursuant to Section 5(b) (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 a term sheet substantially in the form of Schedule II
hereto without the consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
-16-
9. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties of the Company contained herein at the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Securities Act, shall be pending before or threatened by the
Commission; and 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 7(a) hereof.
(b) The Company shall have requested and caused Holland & Knight LLP, counsel for the
Company, to furnish to the Representative its opinion, dated the Closing Date and addressed
to the Representative, to the effect that:
(i) the Registration Statement has become effective under the Securities Act;
each of the Preliminary Prospectus and the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) under the Securities Act specified in
such opinion on the date specified therein; and, to the knowledge of such counsel,
no order suspending the effectiveness of the Registration Statement has been issued,
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 and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or in connection
with the offering is pending or threatened by the Commission;
(ii) the Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Registration Statement, the Disclosure Package and the Prospectus, will not be an
investment company or an entity controlled by an investment company, as
defined in the Investment Company Act;
(iii) the Registration Statement, the Preliminary Prospectus and the
Prospectus, including each Issuer Free Writing Prospectus included in the Disclosure
Package and the Prospectus (other than the financial statements and supporting
schedules included therein or omitted therefrom as to which such counsel need
express no opinion), comply as to form in all material respects with the
requirements of the Securities Act and the Indenture complies as to form in all
material respects with the requirements of the Trust Indenture Act.
(iv) there is no pending or, to the knowledge of such counsel, threatened
action, suit or proceeding or inquiry by or before any court or governmental agency,
authority or body or any arbitrator, domestic or foreign, to which the
-17-
Company or any of its subsidiaries or its or their property is subject that is
not adequately disclosed in the Registration Statement, the Disclosure Package and
the Prospectus, except in each case for such actions, suits, proceedings or
inquiries that, if the subject of an unfavorable decision, ruling or finding, would
not singly or in the aggregate, reasonably be expected to have a Material Adverse
Effect; and to such counsels knowledge the information incorporated by reference
into the Registration Statement, the Disclosure Package and the Prospectus under the
captions Risk Factors Risks related to our business and industry Intellectual
property infringement claims against our customers or us could harm our business
and Risk Factors Risks related to our business and industry Compliance or the
failure to comply with current and future environmental, product stewardship and
producer responsibility laws or regulations could cause us significant expense, and
the statements incorporated by reference into the Registration Statement,
Preliminary Prospectus and the Prospectus from the Annual Report on Form 10-K for
the fiscal year ended August 31, 2010 under the captions Business Environmental
and Legal Proceedings, to the extent that they constitute matters of law,
summaries of legal matters, the Companys charter and bylaws or legal proceedings,
or legal conclusions and are correct in all material respects. All descriptions in
the Registration Statement, the Disclosure Package and the Prospectus of contracts
and other documents to which the Company or its subsidiaries are a party are
accurate in all material respects;
(v) the Company is a corporation incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware with the full
corporate power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Registration Statement,
the Disclosure Package and the Prospectus, and to enter into and perform its
obligations under this Agreement and the Indenture, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification except where the failure to so
qualify would have a Material Adverse Effect;
(vi) the Securities and the Indenture will conform to the description thereof
contained in the Registration Statement, the Disclosure Package and the Prospectus
in all material respects;
(vii) the authorized, issued and outstanding capital stock of the Company is as
set forth in the Registration Statement, Disclosure Package and the Prospectus under
the caption Capitalization (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Registration
Statement, the Disclosure Package and the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Disclosure Package and the
Prospectus); all the issued and outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and nonassessable,
and to such counsels knowledge, none of the outstanding shares of Capital Stock of
the Company was issued in violation of preemptive or other
-18-
similar rights of any Securityholder of the Company, except as otherwise
set forth in the Disclosure Package and the Prospectus;
(viii) neither the execution and delivery of the Indenture or this Agreement,
the issuance and sale of the Securities, nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or asset of the Company or of any
of its subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of
its subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument known to such counsel to which the Company or any of its
subsidiaries is a party or bound or to which its or their property is subject; or
(iii) any statute, law, rule, regulation, judgment, order or decree known to such
counsel to be applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority, foreign or domestic, having jurisdiction over the Company, any of its
subsidiaries or any of their respective properties, except in the case of clause
(ii) for such conflicts, breaches or violations, or such liens, charges or
encumbrances, that would not have a Material Adverse Effect;
(ix) this Agreement has been duly authorized, executed and delivered by the
Company;
(x) the Indenture has been duly authorized, executed and delivered by the
Company, assuming the due authorization, execution and delivery thereof by the
Trustee, and constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors rights generally from time to time in effect and to
general principles of equity and any governmental authority to limit, delay or
prohibit the making of payments outside of the United States); the Securities have
been duly authorized and, when executed and authenticated in accordance with the
provisions of this Agreement and the Indenture and delivered to and paid for by the
Underwriters under this Agreement, will constitute legal, valid, binding and
enforceable obligations of the Company entitled to the benefits of the Indenture
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors rights
generally from time to time in effect and to general principles of equity and any
governmental authority to limit, delay or prohibit the making of payments outside of
the United States) and each holder of the Securities will be entitled to the
benefits of such Indenture; and the statements set forth under the heading
Description of Notes in the Preliminary Prospectus and the Prospectus, insofar as
such statements purport to summarize certain provisions of the Securities and the
Indenture, provide a fair summary of such provisions in all material respects; and
-19-
(xi) to such counsels knowledge, no consent, license, qualification, approval,
authorization, filing with or order or decree of any court or governmental agency or
body, domestic or foreign, is required in connection with the transactions
contemplated herein or in the Indenture, except for the registration of the
Securities under the Securities Act, the qualification of the Indenture under the
Trust Indenture Act and such as may be required under the blue sky or securities
laws of any jurisdiction in which the Securities are offered or sold (as to which
such counsel need express no opinion beyond that set forth in paragraph (iii) above)
and such other approvals (specified in such opinion) as have been obtained.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the jurisdiction of incorporation of the
Company, the State of New York or the federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact (but not as to legal conclusions), to the extent
they deem proper, on certificates of responsible officers of the Company and public
officials. References to the Disclosure Package, the Preliminary Prospectus and the
Prospectus in this Section 9(b) include any amendment or supplement thereto at the Closing
Date. Such opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
(c) The Representative shall have received from Cahill Gordon & Reindel llp,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed
to the Representative, with respect to the issuance and sale of the Securities, the
Indenture, the Disclosure Package, the Prospectus (as amended or supplemented at the Closing
Date) and other related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(d) In giving their opinions required by clauses 8(b) and 8(c), respectively, Holland &
Knight LLP and Cahill Gordon & Reindel llp shall each additionally state that in
the course of the preparation of the Disclosure Package and the Prospectus, as applicable,
such counsel has participated in conferences with officers and representatives of the
Company, including its independent public accountants, during the course of which the
contents of the Registration Statement, Disclosure Package and the Prospectus and related
matters were discussed. Such counsel need not independently check the accuracy or
completeness of, or otherwise verify, and accordingly need not pass upon, and accordingly
need not assume responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement, Disclosure Package and the Prospectus (except as
set forth in items (vi), (vii) and (x) of the opinion set forth in subsection 8(b)). Such
counsel shall additionally state that, however, as a result of such participation, no facts
have come to such counsels attention which causes such counsel to believe that (i)
Registration Statement, at the time of its effective date (including the information, if
-20-
any, deemed pursuant to Rule 430A, 430B or 430C to be part of the Registration
Statement at the time of effectiveness) included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein not
misleading (it being understood that such counsel need express no belief with respect to the
financial statements and other financial data contained therein and except for that part of
the Registration Statement that constitutes the Form T-1, as to which such counsel need not
express any belief), (ii) the Disclosure Package, as amended or supplemented at the
Execution Time included an untrue statement of a material fact or omitted 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 (it being understood that such
counsel need express no belief with respect to the financial statements and other financial
data contained therein), or (iii) the Prospectus or any supplement or amendment thereto, as
of its date or on the Closing Date, included or includes an untrue statement of a material
fact or omitted or omits 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 (it
being understood that such counsel need express no belief with respect to the financial
statements and other financial data contained therein).
(e) The Company shall have furnished to the Representative a certificate of the
Company, signed by (x) the Chief Executive Officer, President or a Vice President and (y)
the principal financial or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the Registration
Statement, the Disclosure Package and the Prospectus and any supplements or amendments
thereto, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date; and
(ii) since the date of the most recent financial statements included in the
Disclosure Package and the Prospectus (exclusive of any amendment or supplement
thereto), there has been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business affairs or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any amendment or supplement
thereto).
(f) At the Execution Time and at the Closing Date, the Company shall have requested and
caused KPMG LLP to furnish to the Underwriters letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance satisfactory to the
Underwriters and confirming that they are an independent registered accounting firm within
the meaning of the Exchange Act and the applicable published rules and regulations
thereunder and stating in effect that:
-21-
(i) in their opinion, the consolidated financial statements and financial
statement schedule of the Company included or incorporated by reference in the
Preliminary Prospectus and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements of the Act and
the applicable rules and regulations thereunder adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements
made available by the Company and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of the meetings
of the stockholders, Board of Directors and Audit, Compensation and Nominating and
Corporate Governance Committees of the Board of Directors of the Company, to the
extent prepared; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to August 31, 2010, nothing
came to their attention which caused them to believe that there was, as of a date no
more than three business days prior to the respective dates of such letters (the
Cut-off Date), (a) any change in the capital stock, increase in long-term debt or
any decrease in consolidated net current assets or stockholders equity of the
Company and its consolidated subsidiaries as compared with the amounts shown on the
August 31, 2010 audited condensed consolidated balance sheet included in the
Registration Statement, Preliminary Prospectus or Prospectus, as applicable, or (b)
for the period from September 1, 2010, to the Cut-off Date, any decrease, as
compared with the corresponding period in the preceding year, in consolidated net
sales or in the total or per-share amounts of net income, except (in the case of
both (a) and (b)) in all instances for changes, increases or decreases that the
Registration Statement, Preliminary Prospectus or Prospectus, as applicable,
disclosures have occurred or may occur; and
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company and its
subsidiaries) set forth or incorporated by reference in the Registration Statement,
Preliminary Prospectus and the Prospectus agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal interpretation.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and
the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been
(i) any change or decrease specified in the letter or letters referred to in paragraph (f)
of this Section 9; or (ii) any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), prospects, earnings, business affairs
or properties of the Company and its subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
-22-
forth in or contemplated in the Registration Statement, Disclosure Package and the
Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or inadvisable to proceed
with the offering, sale or delivery of the Securities as contemplated in the Registration
Statement, Disclosure Package and the Prospectus (exclusive of any amendment or supplement
thereto).
(h) The Securities shall be eligible for clearance and settlement through The
Depository Trust Company and any other relevant clearing system.
(i) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of the Companys debt securities by any nationally recognized statistical
rating organization (as defined in Section 3(a)(62) of the Exchange Act) or any notice
given of any intended or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the Representative
such further information, certificates and documents as the Representative may reasonably
request.
If any of the conditions specified in this Section 9 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representative
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 9 will be delivered to Cahill Gordon &
Reindel llp, counsel for the Underwriters, at 80 Pine Street, New York, New York, on the
Closing Date.
10. Reimbursement of Expenses. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters set forth in Section 9
hereof is not satisfied, because of any termination pursuant to Section 13 hereof or because of any
refusal, inability or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally through the Representative on demand for all reasonable
expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
11. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees, Affiliates and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or
-23-
any of them may become subject under the Securities Act, the Exchange Act or other U.S.
federal or state statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities or actions in respect thereof arise out of or are based upon 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 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 the Disclosure Package, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission made in the
Preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the Company by or on behalf
of any Underwriter through the Representative specifically for inclusion therein. This indemnity
agreement will be in addition to any liability that the Company may otherwise have.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the
Company, each of its directors, its officers who signed the Registration Statement, and each person
who controls the Company within the meaning of either the Securities Act or the Exchange Act, to
the same extent as the foregoing indemnity to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representative specifically for inclusion in the Preliminary Prospectus or
the Prospectus (or in any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability that any Underwriter may otherwise have. The Company acknowledges that
the information contained in the third paragraph, sixth paragraph (third and fourth sentences
only), tenth paragraph (first sentence only) of the Underwriting section of the Prospectus
constitute the only information furnished in writing by or on behalf of the Underwriters for
inclusion in the Registration Statement, the Preliminary Prospectus or the Prospectus or in any
amendment or supplement thereto.
(c) Promptly after receipt by an indemnified party under this Section 11 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 11, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying partys choice at the indemnifying partys expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of
-24-
any separate counsel, other than local counsel, if not appointed by the indemnifying party,
retained by the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying partys election to appoint counsel (including local counsel) to represent the
indemnified party in an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent (x)
includes an unconditional release of each indemnified party from all liability arising out of such
claim, action, suit or 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 party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company
and the Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending any loss, claim, damage, liability or action) (collectively Losses) to which the
Company and one or more of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Underwriters on
the other from the offering of the Securities; provided, however, that in no case
shall any Underwriter be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in such Losses, as well
as any other relevant equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions. Relative fault shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contribution
-25-
were determined by pro rata allocation or any other method of allocation that
does not take account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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. For purposes of this Section 11, each
person who controls an Underwriter within the meaning of either the Securities Act or the Exchange
Act and each director, officer, employee, Affiliate and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act and each officer of the Company who signed
the Registration Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and conditions of this
paragraph (d). The Underwriters obligations to contribute pursuant to this Section 11 are several
in proportion to their respective purchase obligations hereunder and not joint.
(e) The Company hereby confirms its engagement of the services of BBVA as, and BBVA hereby
confirms its agreement with the Company to render services as, a qualified independent
underwriter within the meaning of Rule 2720 of the Conduct Rules of FINRA with respect to the
offering and sale of the Securities. The Company also agrees to indemnify and hold harmless BBVA,
its affiliates, directors and officers and each person, if any, who controls BBVA 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 incurred as a result of BBVAs participation as a
qualified independent underwriter within the meaning of Rule 5110(h) of the Conduct Rules of
FINRA in connection with the offering of the Securities, or if the indemnification provided for in
this Section 11 is unavailable or insufficient to hold harmless BBVA, then the Company shall
contribute to the amount paid or payable by BBVA as a result of the losses, claims, damages or
liabilities, based on the factors described in Section 11(d) above.
12. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter hereunder and such
failure to purchase shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth opposite their names
in Schedule I hereto bears to the aggregate principal amount of Securities set forth opposite the
names of all the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 12, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representative shall determine in order that the required changes in the
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company or any
nondefaulting Underwriter for damages occasioned by its default hereunder.
-26-
13. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representative, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or minimum prices shall have been
established on such exchange; (ii) trading in any securities issued or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market; (iii) a banking
moratorium shall have been declared either by U.S. federal or New York State authorities; (iv)
there shall have occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representative, impractical or
inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated in the
Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto); or (v) there has been a material disruption in securities settlement, payment
or clearance services in the United States.
14. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters or the Company or
any of the indemnified persons referred to in Section 11 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 10 and 11 hereof shall survive the
termination or cancellation of this Agreement.
15. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to J.P. Morgan
Securities LLC, 383 Madison Avenue, New York, NY 10179, Attention: Rajesh Kapadia; or, if sent to
the Company, will be mailed, delivered or telefaxed to (727) 803-3352 and confirmed to it at 10560
Dr. Martin Luther King, Jr. Street North, St. Petersburg, Florida 33716, attention of the General
Counsel.
16. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the indemnified persons referred to in Section
11 hereof and their respective successors and no other person will have any right or obligation
hereunder.
17. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
18. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
19. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
-27-
20. No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and
sale of the Securities pursuant to this Agreement is an arms-length commercial transaction between
the Company, on the one hand, and the Underwriters and any Affiliate through which it may be
acting, on the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary
of the Company and (c) the Companys engagement of the Underwriters in connection with
the offering and the process leading up to the offering is as independent contractors and not
in any other capacity. Furthermore, the Company agrees that it is solely responsible for making
its own judgments in connection with the offering (irrespective of whether any of the Underwriters
has advised or is currently advising the Company on related or other matters). The Company agrees
that they will not claim that the Underwriters have rendered advisory services of any nature or
respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such
transaction or the process leading thereto.
21. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
22. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
23. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Affiliate shall have the meaning specified in Rule 501(b) of Regulation D.
Business Day shall mean, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or required by law, regulation or
executive order to close in The City of New York.
Code shall mean the Internal Revenue Code of 1986, as amended.
Commission shall mean the Securities and Exchange Commission.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Execution Time shall mean the time when sales of the Securities were first made.
FINRA shall mean the Financial Industry Regulatory Authority, Inc.
Investment Company Act shall mean the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Regulation S-X shall mean Regulation S-X under the Act.
Securities Act shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
-28-
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.
-29-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the several Underwriters.
Very truly yours, Jabil Circuit, Inc. |
||||
By: | /s/ Timothy L. Main | |||
Name: | Timothy L. Main | |||
Title: | President & Chief Executive Officer |
-30-
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
confirmed and accepted as of the
date first above written.
J.P. MORGAN SECURITIES LLC |
||||
By: | /s/ Raj Kapadia | |||
Name: | Raj Kapadia | |||
Title: | Managing Director |
BANC OF AMERICA SECURITIES |
||||
By: | /s/ Peter Almond | |||
Name: | Peter Almond | |||
Title: | Director |
CITIGROUP GLOBAL MARKETS INC. |
||||
By: | /s/ Timothy P. Dilworth | |||
Name: | Timothy P. Dilworth | |||
Title: | Managing Director |
RBS SECURITIES INC. |
||||
By: | /s/ Michael F. Newcomb II | |||
Name: | Michael F. Newcomb | |||
Title: | Managing Director |
BNP PARIBAS SECURITIES CORP. |
||||
By: | /s/ Jim Turner | |||
Name: | Jim Turner | |||
Title: | Managing Director Head of Debt Capital Markets |
HSBC SECURITIES (USA) INC. |
||||
By: | /s/ Diane M. Kenna | |||
Name: | Diane M. Kenna | |||
Title: | Senior Vice President |
MIZUHO SECURITIES USA INC. |
||||
By: | /s/ James M. Shepard | |||
Name: | James M. Shepard | |||
Title: | Managing Director |
SCOTIA CAPITAL (USA) INC. |
||||
By: | /s/ Keith Rodriguez | |||
Name: | Keith Rodriguez | |||
Title: | Managing Director |
DAIWA CAPITAL MARKETS AMERICA INC. |
||||
By: | /s/ Hirokazu Kikuchi | |||
Name: | Hirokazu Kikuchi | |||
Title: | EVP and Head of Investment Banking |
BBVA SECURITIES INC. |
||||
By: | /s/ Emilio de las Heras | |||
Name: | Emilio de las Heras | |||
Title: | Head of New York Office Banco Bilbao Vizcaya Argentaria |
|||
By: | /s/ Jesus Gonzalez Torrijos | |||
Name: | Jesus Gonzalez Torrijos | |||
Title: | Head of Structured Finance Americas |
COMERICA SECURITIES, INC. |
||||
By: | /s/ Cynthia J. Higgins | |||
Name: | Cynthia J. Higgins | |||
Title: | Sr. Vice President |
SUNTRUST ROBINSON HUMPRHEY, INC. |
||||
By: | /s/ Christopher S. Grumboski | |||
Name: | Christopher S. Grumboski | |||
Title: | Director |
U.S. BANCORP INVESTMENTS, INC. |
||||
By: | /s/ David Wood | |||
Name: | David Wood | |||
Title: | Managing Director | |||
SCHEDULE I
Principal Amount | ||||
of Securities to Be | ||||
Underwriters | Purchased | |||
J.P. Morgan Securities LLC |
$ | 120,000,000 | ||
Banc of America Securities LLC |
60,000,000 | |||
Citigroup Global Markets Inc. |
60,000,000 | |||
RBS Securities Inc. |
48,000,000 | |||
BNP Paribas Securities Corp. |
18,000,000 | |||
HSBC Securities (USA) Inc. |
18,000,000 | |||
Mizuho Securities USA Inc. |
18,000,000 | |||
Scotia Capital (USA) Inc. |
18,000,000 | |||
Daiwa Capital Markets America Inc. |
18,000,000 | |||
BBVA Securities Inc. |
8,000,000 | |||
Comerica Securities, Inc. |
6,000,000 | |||
SunTrust Robinson Humphrey, Inc. |
6,000,000 | |||
U.S. Bancorp Investments, Inc. |
2,000,000 | |||
Total |
U.S.$400,000,000 |
Schedule I-1
SCHEDULE II
Issuer Free Writing Prospectus filed pursuant to Rule 433
supplementing the Preliminary Prospectus Supplement dated October 28, 2010
(to Prospectus dated October 29, 2008)
Registration No. 333-154835
October 28, 2010
supplementing the Preliminary Prospectus Supplement dated October 28, 2010
(to Prospectus dated October 29, 2008)
Registration No. 333-154835
October 28, 2010
JABIL CIRCUIT, INC.
Pricing Supplement
Pricing Supplement dated October 28, 2010 to Preliminary Prospectus Supplement dated October 28, 2010 of
Jabil Circuit, Inc. This Pricing Supplement is qualified in its entirety by reference to the Preliminary
Prospectus Supplement. The information in this Pricing Supplement supplements the Preliminary Prospectus
Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent it is
inconsistent with the information in the Preliminary Prospectus Supplement. Capitalized terms used in
this Pricing Supplement but not defined have the meanings given them in the Preliminary Prospectus
Supplement.
Issuer
|
Jabil Circuit, Inc. | |
Title of Security
|
5.625% Senior Notes due 2020 | |
Aggregate Principal Amount
|
$ 400,000,000 | |
Maturity
|
December 15, 2020 | |
Public Offering Price
|
100.000%, plus accrued interest, if any, from November 2, 2010 | |
Coupon
|
5.625% | |
Yield to Maturity
|
5.625% | |
Spread to Treasury
|
+297 bps | |
Benchmark
|
UST 2.625% due August 15, 2020 | |
Interest Payment Dates
|
June 15 and December 15 of each year, beginning on June 15, 2011 | |
Record Dates
|
June 1 and December 1 | |
Optional Redemption
|
We may redeem the notes at our option at any time, either in whole or in part at 100% of the principal amount thereof, plus a make-whole premium, using a discount rate of Treasuries plus 0.50%. | |
Change of Control
|
101%, plus accrued and unpaid interest, if any. | |
Gross Proceeds
|
$ 400,000,000 | |
Underwriting Discount
|
2.00% |
Schedule II-1
Net Proceeds to Issuers
before Expenses
|
$392,000,000 | |
Approximate Net Proceeds
to Issuers after Estimated
Expenses
|
$391,000,000 | |
Trade Date
|
October 28, 2010 | |
Settlement Date
|
November 2, 2010 (T+3) | |
Joint Book-Running Managers
|
J.P. Morgan Securities LLC. Banc of America Securities LLC Citigroup Global Markets Inc. RBS Securities Inc. |
|
Senior Co-Managers
|
BNP Paribas Securities Corp. HSBC Securities (USA) Inc. Mizuho Securities USA Inc. Scotia Capital (USA) Inc. Daiwa Capital Markets America Inc. |
|
Co-Managers
|
BBVA Securities Inc. Comerica Securities, Inc. SunTrust Robinson Humphrey, Inc. U.S. Bancorp Investments, Inc. |
Allocation
|
Name | Principal Amount of Notes to be Purchased |
||||
J.P. Morgan Securities LLC | $ | 120,000,000 | ||||
Banc of America Securities LLC | 60,000,000 | |||||
Citigroup Global Markets Inc. | 60,000,000 | |||||
RBS Securities Inc. | 48,000,000 | |||||
BNP Paribas Securities Corp. | 18,000,000 | |||||
HSBC Securities (USA) Inc. | 18,000,000 | |||||
Mizuho Securities USA Inc. | 18,000,000 | |||||
Scotia Capital (USA) Inc. | 18,000,000 | |||||
Daiwa Capital Markets America Inc. | 18,000,000 | |||||
BBVA Securities Inc. | 8,000,000 | |||||
Comerica Securities, Inc. | 6,000,000 | |||||
SunTrust Robinson Humphrey, Inc. | 6,000,000 | |||||
U.S. Bancorp Investments, Inc. | 2,000,000 |
Denominations
|
$2,000 and integral multiples of $1,000 | |
CUSIP/ISIN Numbers
|
CUSIP: 466313 AF0 ISIN: US466313AF08 |
|
Listing
|
None | |
Form of Offering
|
SEC Registered (Registration No. 333-154835) | |
Additional Information:
|
The following changes will be made to the Preliminary Prospectus Supplement. Other information (including financial information) is deemed to have changed to the extent affected by the changes described below. |
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The second bullet-point in the section entitled Capitalization on page S-32 of the Preliminary Prospectus Supplement is hereby amended and shall read in its entirety as follows: |
| on an as adjusted basis to give effect to (i) $391 million of net proceeds from this offering and (ii) the use of this $391 million of net proceeds to repay in full the $340.0 million outstanding under the term portion of our Credit Facility and to repay a portion of the outstanding amounts under our foreign securitization program. |
The table in the section entitled Capitalization on page S-33 of the
Preliminary Prospectus Supplement will be updated to reflect the
following changes ($ in thousands):
As adjusted | ||||||
Short-term debt and current
installments of notes payable, long term debt and capital lease
obligations: |
||||||
Term
portion of the Credit Facility |
0 | |||||
Foreign
Securitization Program |
20,436 | |||||
Total
short-term debt and current installments of long-term debt |
96,566 | |||||
Notes payable, long-term debt and
capital lease obligations, less current installments: |
||||||
Term
portion of the Credit Facility |
0 | |||||
Total
long-term debt |
$ | 1,098,930 | ||||
Total
debt(5) |
$ | 1,195,496 | ||||
Total
capitalization |
$ | 2,773,542 |
The following shall be inserted as the last sentence in the last
paragraph in the section entitled Underwriting; Conflict of Interest on
page S-79 of the Preliminary Prospectus Supplement:
Daiwa Capital Markets America Inc. (DCMA) has entered into an agreement
with SMBC Securities, Inc. (SMBCSI) pursuant to which SMBCSI provides
certain advisory and/or other services to DCMA, including services with
respect to this offering. In return for the provision of such services by
SMBCSI to DCMA, DCMA will pay to SMBCSI a mutually agreed-upon fee.
Sumitomo Mitsui Banking Corporation, an affiliate of SMBCSI, is currently
a lender under our Credit Facility.
FREE WRITING PROSPECTUS LEGEND
JABIL CIRCUIT, INC. HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS AND PRELIMINARY
PROSPECTUS SUPPLEMENT) WITH THE SECURITIES AND EXCHANGE COMMISSION (THE SEC) FOR THE OFFERING TO
WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS (INCLUDING THE
PROSPECTUS SUPPLEMENT) IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS JABIL CIRCUIT, INC. HAS
FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT JABIL CIRCUIT, INC. AND THIS OFFERING. YOU
MAY GET THESE DOCUMENTS FOR FREE BY VISITING THE SEC WEB SITE AT
WWW.SEC.GOV. ALTERNATIVELY, JABIL
CIRCUIT, INC., THE UNDERWRITERS OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU THE PROSPECTUS AND APPLICABLE PROSPECTUS SUPPLEMENT IF YOU REQUEST THEM FROM: J.P. MORGAN
SECURITIES LLC, 383 MADISON AVENUE, FLOOR 27, NEW YORK, NEW YORK 10179 OR BY CALLING (212)
270-6000.
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ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND
SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT
OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
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