EX-1.1
Exhibit 1.1
EXECUTION VERSION
$1,000,000,000
Total System Services, Inc.
$550,000,000 4.000% Senior Notes due 2023
$450,000,000 4.450% Senior Notes due 2028
Underwriting Agreement
May
9, 2018
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
One
Bryant Park
New York, New York 10036
c/o J.P. Morgan
Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Total System
Services, Inc., a Georgia corporation (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representatives (the
“Representatives”), $550,000,000 principal amount of its 4.000% Senior Notes due 2023 (the “2023 Securities”) and $450,000,000 principal amount of its 4.450% Senior Notes due 2028 (the “2028
Securities” and together with the 2023 Securities, the “Securities”). Each of the 2023 Securities and the 2028 Securities will be issued pursuant to an Indenture dated as of March 17, 2016 (including the terms of the
Securities to be established pursuant thereto, the “Indenture”) between the Company, and Regions Bank, as trustee (the “Trustee”).
The Company hereby confirms its agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration statement on Form S-3 (File No. 333-210148)), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it becomes 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 each prospectus included in such registration statement (and any amendments thereto) before it becomes effective, any prospectus
filed with the Commission pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means
the 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 shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to 4:00 p.m., New York City time on the date hereof, the time when sales of the Securities were
first made (the “Time of Sale”), the Company had prepared the following information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated May 9, 2018, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on Annex C hereto.
2. Purchase of the
Securities by the Underwriters.
(a) The Company agrees to issue and sell the Securities to the several Underwriters as provided in
this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Company the respective
principal amount of Securities set forth opposite such Underwriter’s name in Schedule 1 hereto, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, at a purchase price equal to 99.316% of the principal amount of the 2023 Securities and 99.106% of the 2028 Securities, plus accrued interest, if any, from May 9, 2018 to the Closing Date (as defined below), payable on
the Closing Date. The Company will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
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(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the Securities on the terms set forth in the Time of Sale Information. The Company acknowledges and agrees
that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue,
New York, New York at 10:00 A.M., New York City time, on May 11, 2018, or at such other time or place on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Company may agree upon in
writing. The time and date of such payment and delivery is referred to herein as the “Closing Date.”
(d) Payment for the
Securities shall be made on the Closing Date by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives against delivery to the nominee of The Depository Trust Company (“DTC”),
for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company.
The Global Note will be made available for inspection by the Representatives not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
(e) The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person. Additionally, neither of the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with
its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any
responsibility or liability to the Company with respect thereto. Any review by a Representative or any Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of such Representative or such Underwriter and shall not be on behalf of the Company or any other person.
3. Representations
and Warranties of the Company. The Company represents and warrants to each Underwriter that:
(a) Preliminary Prospectus. No
order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state
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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 or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at
the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in such Time of Sale Information. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact
included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free
Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex C hereto which constitute part of the Time of Sale
Information and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities
Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, or filed prior to the first use of, such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer
Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
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(d) Registration Statement and Prospectus. The Registration Statement is an
“automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use
of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the
Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering has been initiated or, to the knowledge of the Company, threatened by the Commission; as of the
applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue statement of a material fact or omit to state a material fact or necessary 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 or warranty with respect to (i) that
part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement and the Prospectus and any amendment or
supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in the Registration Statement, the
Prospectus and the Time of Sale Information, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or
omitted 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; and any further documents so filed and incorporated by
reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(f) Financial Statements. (i) The financial statements of the
Company and its subsidiaries and the related notes and schedules thereto included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and present fairly in all material respects the financial position of the Company and its subsidiaries as of the dates indicated and the results of
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their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information present fairly the information
required to be stated therein; and (ii) the other financial information of the Company and its subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been
derived from the accounting records of the Company and its subsidiaries and presents fairly the information shown thereby. In all material respects, the interactive data in eXtensbile Business Reporting Language included or incorporated by reference
in the Registration Statement, the Prospectus and the Time of Sale Information fairly presents the information called for and is prepared in accordance with the Commission’s rules applicable thereto.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the Company included or incorporated by
reference in the Registration Statement, the Time of Sale Information and the Prospectus, except as otherwise stated therein, (i) there has not been any change in the capital stock (other than pursuant to options and other employee benefit
plans) or any material change in the long-term debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock other than in the
ordinary course, (ii) there has been no material adverse change, or any development involving a prospective material adverse change in the business, properties, rights, assets, management, financial position, or results of operations of the
Company and its subsidiaries taken as a whole, (iii) neither the Company nor any of its subsidiaries has incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole and
(iv) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute
or any action, order or decree of any court or arbitrator or governmental or regulatory authority.
(h) Organization and Good
Standing. The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties
and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse
effect on the business, properties, rights, assets, management, financial position, or results of operations or prospects of the Company and its subsidiaries, taken as a whole (a “Material Adverse Effect”). For purposes of this
Agreement, the term “significant subsidiary” shall have the meaning set forth in Rule 405 under the Securities Act. The subsidiaries listed in Schedule 2 to this Agreement are the only significant subsidiaries of the Company.
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(i) Capitalization. The Company has an authorized capitalization as set forth in the
column entitled “Actual” under the caption “Capitalization” in the Time of Sale Information and the Prospectus as of the date set forth therein and all the outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable, and all of the issued shares of capital stock of each subsidiary of the Company that are owned by the Company are owned directly or
indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(j) Due Authorization. The Company has full right, power and authority to execute and deliver this Agreement, the Securities and the
Indenture (collectively, the “Transaction Documents”) and to perform its obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the
Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(k) The
Indenture. The Indenture has been duly authorized by the Company and upon effectiveness of the Registration Statement was or will have been duly qualified under the Trust Indenture Act and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”).
(l) The Securities. The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions, and will be in the form contemplated by, and entitled to the benefits, of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(n) [Reserved]
(o)
Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in the Time of Sale Information and the Prospectus.
(p) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained
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in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (i) (with respect to subsidiaries), (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property or asset of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any property or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents
of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i),
(ii) (with respect to subsidiaries) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator
or governmental or regulatory authority is required for the execution, delivery and performance by the Company of each of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents, except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(s) Legal Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus,
there are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending to which the Company or any of its subsidiaries is or may be a party or to
which any property or asset of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material
Adverse Effect or a material adverse effect on the ability of
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the Company to perform its obligations under the Transaction Documents; and, to the knowledge of the Company, no such Actions are threatened or contemplated by any governmental or regulatory
authority or others.
(t) Independent Accountants. KPMG LLP, who has expressed its opinion with respect to certain financial
statements of the Company and its subsidiaries is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the Securities Act.
(u) Intellectual Property. The Company and its
subsidiaries own, license, or possess the trademarks, trade names, patent rights, copyrights, licenses, trade secrets and other similar rights (collectively, “Intellectual Property Rights”) reasonably necessary to conduct their
businesses as now conducted by them, except such as to which the failure to so own, license, or possess would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company and its subsidiaries, taken
as a whole. The Company and its subsidiaries’ conduct of their respective businesses does not infringe or conflict with any Intellectual Property Right of others and neither the Company nor any of its subsidiaries has received any written
notice of infringement or conflict with asserted Intellectual Property Rights of others, which infringement or conflict, if the subject of an unfavorable decision, finding or ruling, would, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(v) Investment Company Act. 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 Time of Sale Information and the Prospectus, will not be an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment Company Act”).
(w) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax returns required to
be paid or filed through the date hereof and, except as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be,
asserted against the Company or any of its subsidiaries or any of their respective properties or assets, except for any failures to pay or file or any deficiencies that would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(x) Licenses and Permits. The Company and its subsidiaries possess all licenses, certificates, permits
and other authorizations issued by the appropriate federal, state or foreign governmental or regulatory authorities necessary to conduct their respective businesses as described in the Registration Statement, the Time of Sale Information and the
Prospectus, except where the failure to possess the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as
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described in the Registration Statement, the Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of
any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding or if not renewed, would reasonably be expected to have a Material Adverse Effect.
(y)
Compliance With Environmental Laws. Except as described in the Time of Sale Information and the Prospectus, (i) the Company and its subsidiaries (x) are in material compliance with all applicable laws, rules, regulations,
requirements, decisions and orders and permits relating to the protection of human health, the environment, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”), and (y) have
received all permits required of them under applicable Environmental Laws to conduct their respective businesses and (z) have not received notice of any actual or potential liability under or relating to any Environmental Laws, including
for the investigation or remediation of any disposal or release of hazardous or toxic wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, except where
such noncompliance or such failure to receive required permits or such liability would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) none of the Company and its subsidiaries anticipates
material capital expenditures relating to any Environmental Laws.
(z) Compliance with ERISA. (i) Each employee benefit plan,
within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a
member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any liability (each, a “Plan”) has been maintained in
material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA
or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) each Plan that is intended to be qualified under Section 401(a) of the Code
has received a favorable determination letter or is comprised of a master or prototype plan that has received an opinion letter from the Internal Revenue Service (or has submitted, or is within the remedial amendment period for submitting, an
application for a determination letter and is awaiting a response from the Internal Revenue Service), and, to the knowledge of the Company, no event has occurred and no condition exists that would result in the revocation or failure to issue any
such determination letter or opinion letter; and (iv) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA with respect to the termination of, or
withdrawal from, a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA), except in each case with respect to the events or conditions set forth in (i) through (iv) hereof, as would not,
individually or in the aggregate, have a Material Adverse Effect.
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(aa) Disclosure Controls. 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 Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(bb) Accounting Controls. The Company maintains a system of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and have been designed by, or under the
supervision of, its respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles. The Company maintains internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and (v) interactive data in eXtensbile Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information is prepared
in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in the Registration Statement, the Time of Sale Information and the Prospectus, there are no material weaknesses in the Company’s internal
control over financial reporting.
(cc) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to
the knowledge of the Company, any director, officer, agent, affiliate, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government
or regulatory official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or
party official or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed,
requested or taken an act in furtherance of any unlawful bribe or other
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unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have
instituted, and maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(dd) Compliance with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where
the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the
“Anti-Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the
Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ee) No Conflicts with Sanctions Laws.
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, affiliate, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries is currently
the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department
of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury
(“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company, any of its subsidiaries located, organized or resident in a country or territory that is the subject or the target of
Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea and Syria (each, a “Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or
facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person
participating in the transaction, whether as advisor, investor or otherwise) of Sanctions. Except as detailed in the Registration Statement, the Time of Sale Information and the Prospectus, for the past 5 years, the Company and its subsidiaries have
not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ff) No Stabilization. The Company has not taken, directly or indirectly, any action designed to or that could reasonably be expected
to cause or result in any stabilization or manipulation of the price of the Securities.
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(gg) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company or to
the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(hh) Status under the Securities Act. The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as
defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
4. Further Agreements of the Company. The Company covenants and agrees with each Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b)
and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex C hereto) to the extent required by Rule 433 under the Securities Act; and the Company will
file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will 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 second business day next succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the
registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, to each Underwriter 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 Representatives may reasonably request. As used herein, the
term “Prospectus Delivery Period” means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is required by law
to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. 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, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed
Issuer Free Writing Prospectus,
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amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement
to which the Representatives reasonably object.
(d) Notice to the Representatives. During the Prospectus Delivery Period, the
Company will advise the Representatives promptly, and confirm such advice in writing, (i) when the Registration Statement has become effective; (ii) when any amendment to the Registration Statement has been filed or becomes effective;
(iii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (v) of the issuance by the Commission 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; (vi) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact 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 Time of Sale Information or
any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vii) 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 (viii) 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 every reasonable effort 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 use every reasonable effort to obtain the withdrawal thereof at the earliest possible moment.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Company will promptly 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 Representatives may designate, such amendments or supplements to the Time of Sale Information as may be
necessary so that the statements in the Time of Sale Information as so amended or supplemented will not, in the light of the circumstances under which they were made, be misleading or so that the Time of Sale Information will comply with law.
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(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any 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 is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly
notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will
comply with law.
(g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that the Company shall not be required to
(i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction
or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The
Company will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and including the business day following the Closing Date, the Company
will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company and having a tenor of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities as described in the Registration
Statement, the Time of Sale Information and the Prospectus under the caption “Use of proceeds”.
(k) DTC. The Company
will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through DTC.
(l) No
Stabilization. The Company will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
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(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.
5. 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 Annex C or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the
Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet
referred to in Annex C 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).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as
provided herein is subject to the performance by the Company of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and
no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission
for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Company and its officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
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(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the
execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review,
or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a
possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall
have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in
the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the
Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing Date a certificate of
an executive officer of the Company who has specific knowledge of the Company’s financial matters and is reasonably satisfactory to the Representatives (i) confirming that such officer has carefully reviewed the Registration Statement, the
Time of Sale Information and the Prospectus and, to the best knowledge of such officer, the representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and warranties of the
Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set
forth in paragraphs (a) and (c) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, KPMG LLP
shall have furnished to the Representatives, at the request of the Company, letters with respect to the Company and its subsidiaries, in each case dated the respective dates of delivery thereof and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a
“cut-off” date no more than three business days prior to the Closing Date.
(g)
Opinion and 10b-5 Statement of Counsel for the Company. King & Spalding LLP, counsel for the Company, shall have furnished to the Representatives, at the request of the Company, their written
opinion and 10b-5 Statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex A hereto.
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(h) Opinion of Kathleen Moates, Esq., Senior Deputy General Counsel of the Company, shall
have furnished to the Representatives her written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex B hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have
received on and as of the Closing Date an opinion and 10b-5 statement of Simpson Thacher & Bartlett LLP, counsel for the Underwriters, with respect to such matters as the Representatives may
reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have
been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(k) Good Standing. The
Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and its significant subsidiaries in their respective jurisdictions of organization and their good standing in such other
jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(l) DTC. The Securities shall be eligible for clearance and settlement through DTC.
(m) Additional Documents. On or prior to the Closing Date, the Company shall have furnished to the Representatives such further
certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors
and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses reasonably incurred in connection with any suit, action or proceeding or any claim asserted, as such
18
fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors and officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following paragraphs in the Preliminary Prospectus and the Prospectus: the first paragraph
under the caption “Underwriting—Commissions and Discounts” in the Preliminary Prospectus Supplement and the Prospectus Supplement concerning the terms of offering, including the concession and reallowance to certain dealers, by the
Underwriters; the third and fourth sentences of the paragraph under the caption “Underwriting—New Issue of Notes” in the Preliminary Prospectus Supplement and the Prospectus Supplement relating to market-making by the Underwriters;
the text under the caption “Underwriting—Short Positions” in the Preliminary Prospectus Supplement and the Prospectus Supplement relating to over-allotment, stabilization and syndicate covering transactions by the Underwriters; and
the second paragraph under the caption “Underwriting—Other Relationships” in the Preliminary Prospectus Supplement and the Prospectus Supplement relating to the fact that the Underwriters may, now or in the future, on behalf of
themselves or their customers, hold long or short positions of the Company’s debt or equity securities or loans.
(c) Notice and
Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such person (the “Indemnified Person”) shall promptly notify the person against whom such indemnification may be sought (the “Indemnifying Person”)
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in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under this Section 7 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
to an Indemnified Person otherwise than under this Section 7. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant
to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall
have mutually agreed in writing to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and
expenses, to the extent reasonable, shall be paid or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by
the Representatives and any such separate firm for the Company, its directors and officers who signed the Registration Statement and any control persons of the Company shall be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by
the Indemnifying Person of such request and (ii) the Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been
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sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other
from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also
the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the
Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
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(f) Non-Exclusive Remedies. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Company, if after
the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak
or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36 hours
after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting
Underwriter, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Company
or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the
Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context otherwise
requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
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(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to
any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in paragraph
(b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall be without
liability on the part of the Company, except that the Company will continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall remain
in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and
any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale
Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the
Company’s counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions
as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating agencies for rating the
Securities; (vii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, the Financial Industry Regulatory Authority and the
23
approval of the Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in connection with any “road show” presentation to potential investors;
provided that, except as provided in Section 7 or this Section 11, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason fails to tender the Securities for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the
Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities
and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term
“affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York City; and
(c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
15. Compliance with
USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their
respective clients.
16. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the
Underwriters, and any such action taken by the Representatives shall be binding upon the Underwriters.
24
(b) Notices. All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated,
One Bryant Park, New York, New York 10036 (fax: 212-901-7881), Attention: High Grade Debt Capital Markets Transaction Management/Legal and c/o J.P. Morgan Securities
LLC, 383 Madison Avenue, New York, New York 10179 (fax: 212-834-6081); Attention: High Grade Syndicate Desk – 3rd floor. Notices to the Company shall be given to it
at One TSYS Way, Building C, Floor 1, Columbus, Georgia 31901, (fax: 706-644-4999); Attention: General Counsel.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(d) Submission to Jurisdiction. The Company hereby submits to
the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company
waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and
binding upon the Company and may be enforced in any court to the jurisdiction of which Company is subject by a suit upon such judgment.
(e) Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of
or relating to this Agreement.
(f) Counterparts. This Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(g) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(h) Headings. The
headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
25
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
|
|
|
| Very truly yours, |
|
| TOTAL SYSTEM SERVICES, INC. |
|
|
|
| Name: |
|
Paul Todd |
| Title: |
|
Senior Executive Vice President & Chief
Financial Officer |
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
J.P. MORGAN SECURITIES LLC
For themselves and on behalf of the several
Underwriters listed
in Schedule 1 hereto.
|
|
|
| MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED |
|
|
|
|
|
| By: |
|
/s/ Matthew Basler |
|
|
Authorized Signatory |
|
|
Matthew Basler |
|
|
Managing Director |
|
|
|
| J.P. MORGAN SECURITIES LLC |
|
|
| By: |
|
/s/ Robert Bottamedi |
|
|
Authorized Signatory |
|
|
Robert Bottamedi |
|
|
Vice President |
Schedule 1
|
|
|
|
|
|
|
|
|
| Underwriter |
|
Principal Amount of
2023 Securities |
|
|
Principal Amount of
2028 Securities |
|
| Merrill Lynch, Pierce, Fenner & Smith
Incorporated |
|
$ |
137,500,000 |
|
|
$ |
112,500,000 |
|
| J.P. Morgan Securities LLC |
|
$ |
110,000,000 |
|
|
$ |
90,000,000 |
|
| Capital One Securities, Inc. |
|
$ |
35,750,000 |
|
|
$ |
29,250,000 |
|
| MUFG Securities Americas Inc. |
|
$ |
35,750,000 |
|
|
$ |
29,250,000 |
|
| Regions Securities LLC |
|
$ |
35,750,000 |
|
|
$ |
29,250,000 |
|
| U.S. Bancorp Investments, Inc. |
|
$ |
35,750,000 |
|
|
$ |
29,250,000 |
|
| Wells Fargo Securities, LLC |
|
$ |
35,750,000 |
|
|
$ |
29,250,000 |
|
| SunTrust Robinson Humphrey, Inc. |
|
$ |
27,775,000 |
|
|
$ |
22,725,000 |
|
| TD Securities (USA) LLC |
|
$ |
27,775,000 |
|
|
$ |
22,725,000 |
|
| BMO Capital Markets Corp. |
|
$ |
17,050,000 |
|
|
$ |
13,950,000 |
|
| Fifth Third Securities, Inc. |
|
$ |
17,050,000 |
|
|
$ |
13,950,000 |
|
| PNC Capital Markets LLC |
|
$ |
17,050,000 |
|
|
$ |
13,950,000 |
|
| Synovus Securities Inc. |
|
$ |
17,050,000 |
|
|
$ |
13,950,000 |
|
| Total |
|
$ |
550,000,000 |
|
|
$ |
450,000,000 |
|
Schedule 2
Significant Subsidiaries
Cayan Holdings LLC
NetSpend
Holdings, Inc.
TSYS Acquiring Solutions, LLC
TSYS Merchant Solutions, LLC
Annex A
Form of Opinion of Counsel for the Company
(1) The Registration Statement is effective under the Securities Act and, to our knowledge based solely upon confirming information posted at
http://www.sec.gov/litigation/stoporders.shtml, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been initiated or threatened by the
Commission. The Prospectus was timely filed in the manner required by Rule 424 of the Securities Act.
(2) The Registration Statement, the
Preliminary Prospectus, each Issuer Free Writing Prospectus included in the Time of Sale Information and the Prospectus (other than the financial statements and notes thereto, the financial statement schedules and the other financial information and
data included or incorporated by reference therein or omitted therefrom, and the Statement of Eligibility on Form T-1, as to which we do not express any opinion) comply as to form in all material respects with
the requirements of the Securities Act; and the Indenture has been duly qualified under the Trust Indenture Act and complies as to form in all material respects with the requirements of the Trust Indenture Act.
(3) The Company is validly existing and in good standing under the laws of the State of Georgia.
(4) The Company has the full corporate right, power and authority to execute and deliver each of the Transaction Documents and to perform its
obligations thereunder.
(5) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due execution and
delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
(6) The Securities have been duly authorized, executed and delivered by the Company and, when duly authenticated as provided in the Indenture
and paid for as provided in this Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(7) The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(8) The statements set forth in the Time of Sale Information and the Prospectus under
the caption “Description of Notes,” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects.
(9) The execution, delivery and performance by the Company of each of the Transaction Documents,
the issuance and sale of the Securities and the consummation of the transactions contemplated by the Transaction Documents will not result in a breach or violation of any of the terms and provisions of (i) the charter, by-laws or similar organizational documents of the Company in effect on the date hereof, (ii) the terms of any agreement to which the Company is a party that is filed as a material contract exhibit to the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017 or any subsequent filing with the Commission (other than any such breach or violation under any financial covenants,
ratios or tests, as to which such counsel do not express an opinion), (iii) any federal, Georgia or New York law, statute, rule or regulation, or (iv) any order or decree known to such counsel to be applicable to the Company of any court acting
pursuant to any federal, Georgia, or New York law or statute, except in the case of clauses (ii), (iii) or (iv), for such breaches or violations as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(10) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency (other than the Securities Act and Trust Indenture Act, which have been obtained, or as may be required under the securities or blue sky laws of the various states) is required to be made by the Company in connection
with the authorization, execution, delivery and performance of each of the Transaction Documents, the offering, issuance, sale or delivery of the Securities or the consummation of the transactions contemplated by the Transaction Documents.
(11) The statements set forth in the Time of Sale Information and the Prospectus under the heading “Certain United States Federal Income
Tax Consequences”, insofar as they purport to constitute summaries of matters of U.S. federal income tax law, regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material
respects.
(12) 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 each of the Registration Statement, the Time of Sale Information and the Prospectus, will not be an “investment company” or an entity “controlled” by an “investment company” within the meaning of
the Investment Company Act.
(13) The documents incorporated by reference in the Time of Sale Information and the Prospectus (other than
the financial statements and notes thereto, the financial statement schedules and the other financial information and data included or incorporated by reference therein or omitted therefrom, as to which we do not express any opinion), when they were
filed with the Commission, comply as to form in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
In our capacity as counsel for the Company, we have participated in conferences with representatives of the Company and their independent
registered public accountants and representatives of the Underwriters and their counsel, during which the contents of the
Registration Statement, the Time of Sale Information and the Prospectus and related matters were discussed and reviewed. Although we will not pass upon and will not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Time of Sale Information or the Prospectus (except as expressly provided in paragraphs (9) and (12) above), on the basis of the information
developed in the course of the performance of the services referred to above, nothing has come to our attention that causes us to believe that:
(i) the Registration Statement, as of its effective date and the date of the Underwriting Agreement, contained an untrue statement of a
material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) the Time of Sale Information, as of the date of the Underwriting Agreement, contained an untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(iii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or
omits 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;
except that, with respect to clauses (i), (ii) and (iii) above, we do not express a belief with respect to the financial statements and notes thereto,
the financial statement schedules and notes thereto and the other financial data included or incorporated by reference therein or omitted therefrom, or with respect to clause (i) above, we do not express a belief with respect to the Statement
of Eligibility on Form T-1.
As to certain matters of fact in rendering such opinion, such counsel
may rely to the extent such counsel deems appropriate, without independent verification, upon (i) certificates of officers of the Company and public officials that are furnished to the Underwriters, (ii) the representations and warranties
of the Company contained in the Underwriting Agreement and (iii) the representations and warranties of the Underwriters contained in the Underwriting Agreement. Such counsel may also assume the genuineness of all signatures on the Underwriting
Agreement and the Indenture.
Such opinion shall be limited in all respects to the federal laws of the United States of America and the
laws of the States of Georgia and New York, and no opinion shall be expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein.
The opinion of King & Spalding LLP described above shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
Annex B
Form of Opinion of Kathleen Moates, Esq., Senior Deputy General Counsel of the Company
(1) The Company and its significant subsidiaries are validly existing and in good standing under the laws of their respective jurisdictions,
are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(2) The Company has an authorized capitalization as set forth in the Time of Sale Information
and the Prospectus.
(3) To the best knowledge of such counsel, except as described in the Time of Sale Information and the Prospectus,
there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending to which the Company is or may be a party or to which any property of the Company is or may be the subject which, individually or in the aggregate,
if determined adversely to the Company, would reasonably be expected to have a Material Adverse Effect or have a material adverse effect on the Company’s ability to perform its obligations under the Transaction Documents; and no such
investigations, actions, suits or proceedings are threatened or, to the best knowledge of such counsel, contemplated by any governmental or regulatory authority or threatened by others.
The opinion of Kathleen Moates, Esq., described above shall be rendered to the Underwriters at the request of the Company and shall so state
therein.
Annex C
Time of Sale Information
| |
• |
|
Pricing Term Sheet, dated May 9, 2018, substantially in the form of Annex D. |
Annex D
Pricing Term Sheet
Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement No. 333-210148
Pricing Term Sheet
$550,000,000 4.000% Senior Notes due 2023
$450,000,000 4.450% Senior Notes due 2028
May 9, 2018
This pricing term sheet
supplements the preliminary prospectus supplement of Total System Services, Inc., dated May 9, 2018 relating to the prospectus dated March 14, 2016.
|
|
|
| Issuer: |
|
Total System Services, Inc. |
|
|
| Security Type: |
|
Senior Unsecured Notes |
|
|
| Format: |
|
SEC Registered |
|
|
| Title: |
|
4.000% Senior Notes due 2023 (the “2023 Notes”)
4.450% Senior Notes due 2028 (the “2028 Notes”) |
|
|
| Principal Amount: |
|
2023 Notes: $550,000,000 2028 Notes:
$450,000,000 |
|
|
| Maturity Date: |
|
2023 Notes: June 1, 2023 2028 Notes:
June 1, 2028 |
|
|
| Coupon: |
|
2023 Notes: 4.000% 2028 Notes:
4.450% |
|
|
| Price to Public: |
|
2023 Notes: 99.916% 2028 Notes:
99.756% |
|
|
| Yield to Maturity: |
|
2023 Notes: 4.018% 2028 Notes:
4.480% |
|
|
| Re-Offer Spread to Benchmark
Treasury: |
|
2023 Notes: +118 bps 2028 Notes: +148
bps |
|
|
| Benchmark Treasury: |
|
2023 Notes: UST 2.750% due April 30, 2023
2028 Notes: UST 2.750% due February 15, 2028 |
|
|
| Benchmark Treasury Price/Yield: |
|
2023 Notes: 99-19 / 2.838%
2028 Notes: 97-28+ / 3.000% |
|
|
|
|
|
| Expected Ratings (Moody’s / S&P)*: |
|
[intentionally omitted] |
|
|
| Pricing Date: |
|
May 9, 2018 |
|
|
| Settlement Date: |
|
May 11, 2018 (T+2) |
|
|
| Interest Payment Dates: |
|
June 1 and December 1, commencing December 1, 2018 |
|
|
| Optional Redemption: |
|
2023 Notes: +20 bps 2028 Notes: +25
bps |
|
|
| Par Call: |
|
2023 Notes: At any time on or after May 1, 2023 at par plus accrued and unpaid interest to the redemption date
2028 Notes: At any time on or after March 1, 2028 at par plus accrued and unpaid interest to the redemption date |
|
|
| CUSIP/ISIN: |
|
2023 Notes: 891906 AE9 / US891906AE92 |
|
|
2028 Notes: 891906 AF6 / US891906AF67 |
|
|
| Joint Book-Running Managers: |
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
J.P. Morgan Securities LLC |
|
|
| Passive Book-Running Managers: |
|
Capital One Securities, Inc. MUFG Securities
Americas Inc. Regions Securities LLC U.S. Bancorp
Investments, Inc. Wells Fargo Securities, LLC SunTrust
Robinson Humphrey, Inc. TD Securities (USA) LLC |
|
|
| Co-Managers: |
|
BMO Capital Markets Corp. Fifth Third
Securities, Inc. PNC Capital Markets LLC Synovus Securities,
Inc. |
| * |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision, suspension or withdrawal at any time. |
The issuer has filed a registration statement (including a base prospectus) and a prospectus supplement with the U.S. Securities and Exchange Commission
(SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus supplement for this offering, the issuer’s prospectus in that registration statement and any other documents the issuer has filed with
the SEC for more complete information about the issuer and this offering. You may get these documents for free by searching the SEC online data base (EDGAR) on the
SEC web site at http://www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus supplement and prospectus if you
request it by calling or e-mailing Merrill Lynch, Pierce, Fenner & Smith Incorporated at
1-800-294-1322 or dg.prospectus_requests@baml.com or calling J.P. Morgan Securities LLC collect at (212) 834-4533.
