Form 8-K
8-K — FLOWSERVE CORP
Accession: 0001193125-26-209137
Filed: 2026-05-06
Period: 2026-05-05
CIK: 0000030625
SIC: 3561 (PUMPS & PUMPING EQUIPMENT)
Item: Entry into a Material Definitive Agreement
Item: Financial Statements and Exhibits
Documents
8-K — d126646d8k.htm (Primary)
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8-K
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8-K
FLOWSERVE CORP false 0000030625 0000030625 2026-05-05 2026-05-05
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 5, 2026
FLOWSERVE CORPORATION
(Exact Name of Registrant as Specified in its Charter)
New York
1-13179
31-0267900
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
5215 N. O’Connor Blvd., Suite 700, Irving, Texas
75039
(Address of Principal Executive Offices)
(Zip Code)
(972) 443-6500
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, $1.25 Par Value
FLS
New York Stock Exchange
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01.
Entry into a Material Definitive Agreement.
On May 5, 2026, Flowserve Corporation, a New York corporation (the “Company”), entered into an underwriting agreement (the “Underwriting Agreement”) with BofA Securities, Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC, as representatives of the several underwriters named therein, relating to the offering and sale of $500 million aggregate principal amount of the Company’s 5.700% Senior Notes due 2036 (the “Notes”).
The terms of the Notes will be governed by that certain Indenture, dated as of September 11, 2012, between the Company and U.S. Bank Trust Company, National Association (as successor-in-interest to U.S. Bank National Association), as trustee (the “Base Indenture”), and a related supplemental indenture, to be dated as of May 12, 2026, setting forth the specific terms applicable to the Notes.
The offering of the Notes is expected to close on May 12, 2026, subject to the satisfaction of customary closing conditions contained in the Underwriting Agreement. The Company intends to use the net proceeds from the offering of the Notes to fund the purchase price for the acquisition of Trillium Flow Technologies Valves Division (the “Trillium Flow Acquisition”) and any remaining proceeds for general corporate purposes, which may include the repayment of outstanding indebtedness. If (i) the Trillium Flow Acquisition is not consummated on or prior to February 4, 2027, or such later date as the parties to the purchase agreement may agree as the “Longstop Date” thereunder, or (ii) the purchase agreement related thereto is terminated without the Trillium Flow Acquisition being consummated, the Company intends to use the net proceeds from the offering of the Notes, together with borrowings under its revolving credit facility (the “Revolving Facility”) or cash on hand, or a combination thereof, if necessary, to redeem all of the outstanding Notes at a redemption price equal to 101% of the aggregate principal amount of such Notes plus accrued and unpaid interest thereon, if any, to the redemption date.
The Notes are being offered and sold under a Registration Statement on Form S-3 (Registration No. 333-286219) and are described in a Prospectus Supplement dated May 5, 2026.
The Underwriting Agreement contains customary representations, warranties and agreements of the Company, and customary conditions to closing, indemnification rights and termination provisions. The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Underwriting Agreement, which is filed as Exhibit 1.1 hereto and incorporated herein by reference.
The underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings with the Company or its affiliates. They have received, and may in the future receive, customary fees and commissions for these transactions. In particular, certain of the underwriters or their affiliates are lenders under the Revolving Facility.
Item 9.01.
Financial Statements and Exhibits.
(d) Exhibits
Exhibit
No.
Description
1.1
Underwriting Agreement, dated May 5, 2026, among Flowserve Corporation and BofA Securities, Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC, as representatives of the several underwriters named therein.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
Flowserve Corporation
Date: May 6, 2026
By:
/s/ Amy B. Schwetz
Amy B. Schwetz
Senior Vice President, Chief Financial Officer
EX-1.1
EX-1.1
Filename: d126646dex11.htm · Sequence: 2
EX-1.1
Exhibit 1.1
EXECUTION VERSION
FLOWSERVE
CORPORATION
$500,000,000
5.700% Senior Notes due 2036
UNDERWRITING AGREEMENT
May 5, 2026
BofA
Securities, Inc.
J.P. Morgan Securities LLC
Mizuho Securities USA LLC
Underwriting Agreement
May 5, 2026
BOFA SECURITIES, INC.
J.P. MORGAN SECURITIES LLC
MIZUHO SECURITIES USA LLC
As Representatives of the several Underwriters
c/o BOFA SECURITIES, INC.
One Bryant Park
New York, New York 10036
c/o J.P. MORGAN SECURITIES LLC
270 Park Avenue
New York, New York 10017
c/o MIZUHO SECURITIES USA LLC
1271 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
Introductory. Flowserve Corporation, a New York corporation (the “Company”), proposes to issue and sell to the
several underwriters named in Schedule A hereto (the “Underwriters”), acting severally and not jointly, the respective amounts set forth in such Schedule A of $500,000,000 aggregate principal amount of the Company’s 5.700%
Senior Notes due 2036 (the “Notes” or the “Securities”). BofA Securities, Inc., J.P. Morgan Securities LLC and Mizuho Securities USA LLC have agreed to act as representatives of the several Underwriters (in such
capacity, collectively, the “Representatives”) in connection with the offering and sale of the Securities. To the extent there are no additional underwriters listed on Schedule A to this Underwriting Agreement (this
“Agreement”) other than the Representatives, the term “Representatives” as used herein shall mean the Representatives as the Underwriters, and the terms “Representatives” and “Underwriters”
shall mean either the singular or plural as the context requires.
The Securities will be issued pursuant to an indenture, dated as of
September 11, 2012 (the “Base Indenture”), between the Company and U.S. Bank Trust Company, National Association (as successor-in-interest to
U.S. Bank National Association), as trustee (the “Trustee”), as amended and supplemented by that certain Sixth Supplemental Indenture, to be dated as of the Closing Date (as defined below) (the “Sixth Supplemental
Indenture”), between the Company and the Trustee. The Base Indenture as amended and supplemented by the Sixth Supplemental Indenture is referred to herein as the “Indenture”.
The Securities are being issued in connection with the Company’s acquisition of the shares comprising the entire issued share capital of
FR Flow Control Valves Bidco Limited, a company incorporated under the laws of England and Wales (the “Trillium Flow Acquisition”), as contemplated by the Trillium Flow Purchase Agreement dated February 4, 2026. In the event
that (i) the Trillium Flow Acquisition is not consummated on or prior to February 4, 2027 or such later date as the parties to the purchase agreement may agree as the “Longstop Date” thereunder, or (ii) the purchase
agreement related thereto is terminated without the Trillium Flow Acquisition being consummated, the Company will be required to redeem all of the outstanding Notes at a redemption price equal to 101% of the aggregate principal amount of such Notes
plus accrued and unpaid interest thereon, if any, to the redemption date.
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The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-286219), which contains a base prospectus (the “Base
Prospectus”), to be used in connection with the public offering and sale of debt securities, including the Securities, and other securities of the Company under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act. Such registration statement, including the financial statements,
exhibits and schedules thereto, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the “Registration Statement;” provided,
that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendment thereto as of the Initial Sale Time (defined below), which time shall be considered the new
effective date of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B under the Securities Act. The term “Prospectus” shall mean the final prospectus supplement relating to the
Securities, together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed and delivered (the “Execution Time”) by the parties hereto. The term
“Preliminary Prospectus” shall mean any preliminary prospectus supplement relating to the Securities, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any reference herein to the
Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act prior to 1:45 p.m., New York City time, on May 5, 2026 (the “Initial Sale Time”). All references in this Agreement to the Registration Statement,
the Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System
(“EDGAR”).
All references in this Agreement to financial statements and schedules and other information which is
“contained,” “included” or “stated” (or other references of like import) in the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the Initial Sale Time; and all references
in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after
the Initial Sale Time.
The Company hereby confirms its agreement with the Underwriters as follows:
SECTION 1. Representations and Warranties of the Company.
The Company hereby represents, warrants and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the
Closing Date (in each case, a “Representation Date”), as follows:
a) Compliance with Registration Requirements.
The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement became effective under the Securities Act upon filing with the Commission. No stop order
suspending the effectiveness of the Registration
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Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, are contemplated or threatened by
the Commission. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (collectively, the “Trust Indenture Act”).
At each Representation Date, the Registration Statement and any amendments thereto (i) complied and will comply in all material respects
with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not
apply to (i) that part of the Registration Statement which constitutes the Statement of Eligibility on Form T-1 of the Trustee under the Trust Indenture Act and (ii) statements in or omissions from
the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters
expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
The Preliminary Prospectus and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the
Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Securities will, at the time of such delivery, be identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
b) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary Prospectus dated
May 5, 2026, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in Annex I hereto and (iii) any other free
writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information
described as such in Section 8(b) hereof.
c) Incorporated Documents. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement, the Disclosure Package and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange
Act and (ii) when read together with the other information in the Disclosure Package, at the Initial Sale Time, and when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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d) Company is a Well-Known Seasoned Issuer. (i) At the time of filing the
Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) as of the Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule 405 of the
Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, that automatically became effective not more than three years prior to the Execution Time; the
Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration statement form.
e) Company Not Ineligible Issuer. (i) At the earliest time after the filing of
the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) and (ii) as of the Initial Sale Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the
Securities Act that it is not necessary that the Company be considered an “ineligible issuer.”
f) Issuer Free Writing
Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offering of Securities under this Agreement or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Disclosure Package or the
Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicts or would conflict with the information contained in the
Registration Statement, the Disclosure Package or the Prospectus, the Company will promptly notify the Representatives and amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 8(b) hereof.
g) Distribution of Offering Material by the Company. The Company has not distributed and will not distribute, prior to the later of the
Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities, other than the Registration Statement, the Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in Annex I hereto or any electronic road show or other free writing prospectuses reviewed and consented to by the Representatives and listed
on Annex II hereto (each an “Other Free Writing Prospectus”). Each such Other Free Writing Prospectus, when taken together with the Disclosure Package, 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. The preceding sentence does not apply to statements in or omissions from
the Other Free Writing Prospectuses based upon and in conformity with written information furnished to the Company by any Underwriter specifically for use therein, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(b) hereof. The investor presentation dated May 2026 (the “Investor Presentation”), when taken together with the Disclosure Package, 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.
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h) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived.
i) Authorization of this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
j) Authorization of the Indenture. The Base Indenture has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium, or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles (whether applied by a court of law or equity). The Sixth Supplemental Indenture
has been duly authorized by the Company and, at the Closing Date, will have been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles (whether applied by a court of law or equity).
k) Authorization of
the Securities. On the Closing Date, the Securities to be purchased by the Underwriters from the Company will be in the form contemplated by the Indenture, will have been duly authorized for issuance and sale pursuant to this Agreement and the
Indenture and will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles (whether applied by a court of law or equity), and will be entitled to the benefits of the Indenture.
l) Description of the Securities and the Indenture. The Securities and the Indenture conform in all material respects to the
descriptions thereof contained in the Disclosure Package and the Prospectus.
m) No Material Adverse Change. Except as otherwise
disclosed in the Disclosure Package, subsequent to the respective dates as of which information is given in the Disclosure Package, there has been no material adverse change, or any development that would reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the earnings, management, business, properties or results of operations, whether or not arising from transactions in the ordinary course of business, of the Company and its
subsidiaries, taken as a whole (any such change is called a “Material Adverse Change”).
n) Independent
Accountants. PricewaterhouseCoopers LLP, who has audited certain of the Company’s financial statements incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, are independent public
accountants with respect to the Company as required by the Securities Act and the Exchange Act and is an independent registered public accounting firm with the Public Company Accounting Oversight Board.
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o) Incorporation and Good Standing of the Company and Significant Subsidiaries. The
Company and each subsidiary of the Company that is a significant subsidiary as defined in Rule 1-02 of Regulation S-X under the Securities Act (each, a
“Significant Subsidiary”) has been duly incorporated or formed; is an existing corporation or other entity in good standing under the laws of its jurisdiction of incorporation or organization, with power and authority (corporate
or other organizational) to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus; and is duly qualified to do business as a foreign corporation or other
entity in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in
the aggregate, have a material adverse effect (i) on the condition, financial or otherwise, or in the earnings, management, business, properties or results of operations, whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, taken as a whole or (ii) on the ability of the Company to perform its respective obligations under, and consummate the transactions contemplated by, this Agreement, the Indenture, the Securities
(each, a “Material Adverse Effect”). The Company has all requisite power and authority (corporate and other organizational) to enter into this Agreement, the Indenture and the Securities and to authorize, issue and sell the
Securities as contemplated by this Agreement.
p) Capitalization and Other Matters. The Company has an authorized capitalization as
set forth in the Disclosure Package and the Prospectus. All of the issued and outstanding shares of capital stock of each Significant Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable and the shares of
capital stock of each Significant Subsidiary are owned free from liens, encumbrances and defects, except as (i) would not, individually or in the aggregate, have a Material Adverse Effect or (ii) disclosed in the Disclosure Package and the
Prospectus.
q) No Further Authorizations or Approvals Required. No consent, approval, authorization, or order of, or registration
or filing with, any governmental or regulatory authority or agency or body or any court with jurisdiction over the Company or any of its respective properties is required to be obtained or made by the Company for the Company’s execution,
delivery or performance of this Agreement and consummation of the transactions contemplated by this Agreement in connection with the sale of the Securities, except such as have been obtained and made or will be obtained and made prior to the date
hereof under the Securities Act (provided, however, a filing with the Commission pursuant to Rule 424(b), Rule 430, Rule 430B or Rule 433 may be made after the date hereof so long as such filing is made within the time period specified in the
applicable provision of such rule) and such as may be required under state securities or blue sky laws.
r) No Conflicts. None of
the Company or any Significant Subsidiary is (i) in violation of its articles of incorporation, charter, by-laws or other constitutive documents, (ii) in default (or, with the giving of notice or
lapse of time or both, would be in default) (“Default”) under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement or instrument to which the Company or any
Significant Subsidiary is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (each, an “Existing Instrument”) or (iii) in
violation of any statute, law, rule or regulation, or any judgment, order or decree of any court or arbitrator or governmental or regulatory body having jurisdiction over it or any of its properties, except, with respect to clauses (ii) and
(iii) only, for such Defaults or violations as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or as otherwise disclosed in the Disclosure Package and the Prospectus. The execution, delivery and
performance of this Agreement, the Indenture and the Securities by the Company, and consummation of the transactions herein contemplated, by the Disclosure Package and by the Prospectus (i) have been duly authorized by all necessary corporate
or other entity action and will not result in any violation of the articles of incorporation, charter or by-laws (or comparable constitutive documents) of the Company or
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any Significant Subsidiary, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment Triggering Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to any Existing Instrument, and (iii) will not result in any violation of any statute, law, rule or regulation, or
any judgment, order or decree of any court or arbitrator or governmental or regulatory body having jurisdiction over it or any of its properties, except, with respect to clauses (ii) and (iii) only, for such Defaults or violations as would not,
individually or in the aggregate, have a Material Adverse Effect. As used herein, a “Debt Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time or both would give, the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) issued by the Company or any Significant Subsidiary, the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Significant Subsidiary.
s) Title to Properties. Except as disclosed in the
Disclosure Package and the Prospectus, the Company and each of its subsidiaries has (i) good and indefeasible title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property) and (iii) valid title to (in the case of all other personal property), all of its respective properties and assets reflected in the Company’s consolidated financial statements included in the Registration
Statement, the Disclosure Package and the Prospectus free and clear of all liens, encumbrances and defects, except for such failures to have such title to or interests in, and for such liens, encumbrances and defects, as would not, individually or
in the aggregate, have a Material Adverse Effect.
t) All Necessary Permits. The Company and each of its subsidiaries possess
adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them, except as would not, individually or in the aggregate, have a Material Adverse Effect.
u) Labor Matters. No labor dispute with the employees of the Company or any subsidiary of the Company exists or, to the knowledge of
the Company, is imminent and, to the knowledge of the Company, there is no existing or imminent labor dispute by the employees of the Company’s or any of its subsidiaries’ principal suppliers, contractors or customers that, in each case,
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
v) Intellectual Property
Rights. Except as set forth in the Disclosure Package and the Prospectus, to the Company’s knowledge, the Company or its subsidiaries own or possess a valid right to use all patents, trademarks, service marks, trade names, copyrights,
patentable inventions, trade secret, know-how and other intellectual property (collectively, the “Intellectual Property”) used by the Company or its subsidiaries in the conduct of the Company’s or any subsidiary of the
Company’s business as now conducted or as proposed in the Disclosure Package or the Prospectus to be conducted, except where such failure to own or possess the valid right to use such Intellectual Property would not, individually or in the
aggregate, have a Material Adverse Effect.
w) Compliance with Environmental Laws. Except as disclosed in the Disclosure Package
and the Prospectus, and except for such matters as would not, individually or in the aggregate, have a Material Adverse Effect:
(i) the Company and its subsidiaries (A) are conducting and have conducted their respective businesses, operations and
facilities in compliance with Environmental Laws (as defined below); (B) possess, and are and have been in compliance with, any and all permits, licenses or registrations required under Environmental Laws for the conduct of their respective
businesses or operations (“Environmental Permits”); (C) have not, pursuant to any contract or
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agreement, assumed any responsibility or obligation for any liability under any Environmental Laws or any presence, spill or release of any Hazardous Substances (as defined below), in each case,
known to the Company or its subsidiaries; (D) have not received any written notice from a governmental authority or any other third party alleging any violation of any Environmental Law or liability thereunder (including, without limitation,
liability as a “potentially responsible party” for costs of investigating or remediating property impacted by Hazardous Substances and/or for damages to natural resources); and (E) are not subject to any pending or, to the knowledge
of the Company, threatened claim, action, suit or other legal proceeding under any Environmental Laws (“Environmental Claim”) against the Company or its subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained or assumed either contractually or by operation of law;
(ii) there are no Environmental Laws or unsatisfied conditions in any Environmental Permit that, individually or in the
aggregate, can reasonably be expected to require any material capital expenditures in the current year or the next three (3) years to maintain the Company’s or any of its subsidiaries’ compliance with Environmental Laws or with
their respective Environmental Permits;
(iii) the Company and its subsidiaries do not rely on any third party for any
indemnity for, or the contractual assumption of, any material known current or anticipated remediation obligation or liability under Environmental Law, and the Company does not have reasonable cause to believe that any such third party will default
in its obligation to comply with such indemnity or contractual assumption; and
(iv) the Company does not have reasonable
cause to believe that any third party insurer will default in its obligation to comply with any insurance coverage with respect to any material known current or anticipated remediation obligation or liability of the Company or any of its
subsidiaries under Environmental Law.
As used in this paragraph, “Environmental Laws” means any federal, state, local, and
foreign laws, statutes, ordinances, rules, regulations, directives, requirements and common law, and any legally enforceable administrative or judicial interpretation, order, consent, decree or judgment thereof, relating to pollution or the
protection of human health from exposure to toxic or hazardous substances or wastes or the environment, including, without limitation, those relating to, regulating, or imposing liability or standards of conduct concerning (i) noise or odor,
(ii) emissions, discharges, releases or threatened releases of toxic or hazardous substances or wastes into ambient air, surface water, groundwater, land surface or subsurface strata, (iii) the generation, manufacture, processing,
distribution, use, treatment, storage, disposal, release, transport or handling of, or exposure to, toxic or hazardous substances or wastes, (iv) the protection of wildlife or endangered or threatened species, or (v) the investigation,
remediation or cleanup of, or exposure to, any toxic or hazardous substances or wastes. As used in this paragraph, “Hazardous Substances” means chemicals, substances, materials, constituents or wastes regulated, listed, or defined as
pollutants, contaminants or hazardous, radioactive or toxic or words of similar import pursuant to Environmental Laws, including petroleum, petroleum products and their breakdown constituents, asbestos and asbestos-containing materials, lead-based
paint, per- or polyfluoroalkyl substances or polychlorinated biphenyls.
x) No Undisclosed
Material Action or Proceeds. Except as disclosed in the Disclosure Package and the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company, any subsidiary of the Company or any of their respective
properties that, if determined adversely to the Company or any subsidiary of the Company, would, individually or in the aggregate, have a Material Adverse Effect; and no such actions, suits or proceedings are, to the Company’s knowledge,
threatened or contemplated. There are no legal or governmental actions, suits or proceedings pending or, to Company’s knowledge, threatened that are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure
Package and are not so disclosed.
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y) Financial Statements and Financial Information. The consolidated financial
statements of the Company and its consolidated subsidiaries, together with the related notes thereto included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, present fairly in all material
respects the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements comply in all material respects as to form
with the accounting requirements of the Securities Act and have been prepared in conformity with the generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods
involved, except as otherwise noted therein or as may be stated in the related notes thereto. The summary financial information included in the Disclosure Package and the Prospectus present fairly the information shown therein and have been derived
from the financial statements included in the Disclosure Package and the Prospectus. The interactive data in eXtensible Business Reporting Language furnished with the Exchange Act filings incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. All
non-GAAP financial information included in the Registration Statement, if any, complies with the requirements of Item 10 of Regulation S-K under the Securities Act.
z) Not an Investment Company. The Company is not or, after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940.
aa) Insurance. The Company and the subsidiaries of the Company are insured by recognized, financially sound and reputable institutions
with policies in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses including, but not limited to, policies covering real and personal property owned or leased by the
Company and the subsidiaries of the Company against theft, damage, destruction, acts of vandalism and earthquakes. All material policies of insurance insuring the Company and any of its subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and its subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and, except as would not have a Material Adverse Effect, there are no
claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. The Company has no reason to believe that it or any of its
subsidiaries will not be able (i) to renew their respective existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary to conduct their respective
businesses as now conducted and at a cost that would not have a Material Adverse Effect.
bb) No Price Stabilization or
Manipulation. Prior to the date hereof, neither the Company nor any of its affiliates has taken any action which is designed to or which has constituted or which might have been reasonably expected to cause or result in unlawful stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
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cc) Internal Controls. The Company and its subsidiaries, on a consolidated basis,
maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the Disclosure Package
and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness or significant deficiencies in the Company’s and its subsidiaries’ internal control over financial
reporting (whether or not remediated) and (ii) no adverse change in the Company’s or any subsidiary’s internal control over financial reporting, in either case of clause (i) or (ii) preceding that has materially and adversely
affected, or is reasonably likely to materially and adversely affect, the Company’s and its subsidiaries’ internal control over financial reporting, on a consolidated basis.
dd) Disclosure Controls and Procedures. The Company and its subsidiaries, on a consolidated basis, maintain a system of
“disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed to ensure that
information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported in accordance with the Exchange Act. The Company’s management has carried out
evaluations, with the participation of the Company’s principal executive and principal financial officers, of the effectiveness of the Company’s disclosure controls and procedures in accordance with Rule
13a-15 of the Exchange Act.
ee) Regulation T, U or X. Neither the Company nor any of its
subsidiaries nor any agent thereof acting on the behalf of them has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System.
ff) No Unlawful Contributions or Other Payments. None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director, officer, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of
either (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official”
(as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (ii) the U.K. Bribery Act 2010 (the “Bribery Act”), or
any other applicable anti-bribery or anti-corruption laws and the Company, its subsidiaries and, to the Company’s knowledge, its affiliates have conducted their businesses in compliance with all applicable anti-bribery and anti-corruption laws
and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
gg) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times
in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
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hh) No Conflicts with Sanctions Laws. None of the Company, any of its subsidiaries
or, to the Company’s knowledge, any director, officer, employee or affiliate of the Company or any of its subsidiaries, is currently the subject or 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 or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked
person”), the United Nations Security Council, the European Union or His Majesty’s Treasury, or other relevant sanctions authority (any such sanctions, “Sanctions” and such sanctions authorities, the
“Sanctions Authorities”), nor is the Company, or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the non-government controlled areas of the
Zaporizhzhia and Kherson Regions of Ukraine, Crimea, other Covered Regions (as defined in the Executive Order 14065) of Ukraine identified pursuant to the Executive Order 14065, Cuba, Iran, North Korea and Syria (with respect to Syria, only until
July 1, 2025) (each, a “Sanctioned Country”). The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure, and
which are reasonably expected to ensure, compliance with all of the relevant regulations adopted by the Sanctions Authorities. 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 underwriter, advisor, investor or otherwise) of Sanctions, in each case, to the extent that such Sanctions are applicable to such business or person. Since April 24, 2019, none of Company or any of its subsidiaries
has 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.
ii) Sarbanes-Oxley Compliance. There is and has been no failure on the part of the Company and any of the Company’s directors or
officers, in their capacities as such, to comply in all material respects with any applicable 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.
jj)
Cybersecurity. Except as disclosed in the Disclosure Package or the Prospectus or except as would not reasonably be expected to result in a Material Adverse Effect, the Company and its subsidiaries’ information technology assets and
equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform as required in connection with the operation of the business
of the Company and its subsidiaries as currently conducted, free and clear of all bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. Except as would not have a Material Adverse Effect, the Company and its subsidiaries
have implemented and maintained controls, policies, procedures, and safeguards to maintain and protect their confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all
personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to
same, except for such breaches, violations, outages or unauthorized uses as would not, individually or in the aggregate, have a Material Adverse Effect and those that have been remedied without material cost or liability or the duty to notify any
other person, nor any incidents under internal review or investigations relating to the same. Except as disclosed in the Disclosure Package or the Prospectus or except as would not reasonably be expected to result in a Material Adverse Effect, the
Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.
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Any certificate signed by an officer of the Company and delivered to the Representatives or
to counsel for the Underwriters in connection with the offering of the Securities shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
a) The Securities. The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all of the Securities
upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company the aggregate principal amount of Securities set forth opposite their names on Schedule A at a purchase price of 99.214% of the principal amount of the Securities, payable on the Closing Date, plus any additional principal amount of
Securities which the Underwriters may become obligated to purchase pursuant to the provisions of Section 10 hereof.
b) Public
Offering of the Securities. The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described and subject to the limitations set forth in the Disclosure Package and the Prospectus, their
respective portions of the Securities as soon after the Execution Time as the Representatives, in their sole judgment, have determined is advisable and practicable.
c) Payment for and Delivery of the Securities. The Company will deliver against payment of the purchase price the Securities in the
form of one or more permanent global securities in definitive form (the “Global Securities”) deposited with the Trustee as custodian for The Depository Trust Company (“DTC”) and registered in the name of
Cede & Co., as nominee for DTC. Payment for the Securities shall be made by the Underwriters in Federal (same day) funds by wire transfer to a U.S. bank account specified by the Company, at 9:00 A.M., New York time, on May 12, 2026, or
at such other time not later than seven full business days thereafter as the Representatives and the Company shall mutually determine (such time and date, the “Closing Date”), against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the offered Securities. Delivery of the Securities shall be made through the facilities of the DTC unless the Representatives shall otherwise instruct.
It is understood that the Representatives have been authorized, for their own accounts and for the accounts of the several Underwriters, to
accept delivery of and receipt for, and make payment of the purchase price for, the Securities that the Underwriters have agreed to purchase. Each of the Representatives may (but shall not be obligated to) make payment for any Securities to be
purchased by any Underwriter whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such payment shall not relieve such Underwriter from any of its obligations under this
Agreement.
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SECTION 3. Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
a) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430B of the Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of (i) the effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective
amendment to the Registration Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii) any
request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes. The Company will effect the filings required pursuant to Rule 424(b), in the manner and within the time period required by Rule 424(b), and will take
such steps as the Company deems necessary to ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 were received for filing by the Commission and, in the event that any of them was not,
the Company will promptly file such document. The Company will use its reasonable best efforts to prevent the issuance of any stop order referred to above and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
b) Filing of Amendments. During the period beginning on the date hereof and ending on the later of the Closing Date or
such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Securities by an Underwriter or dealer, including in circumstances where such requirement may
be satisfied pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery Period”), the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the Securities Act), or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall
reasonably object.
c) Copies of the Registration Statement. The Company has furnished or will deliver to the Representatives and
counsel for the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein).
d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each
Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request.
e) Continued Compliance with Securities Laws. The Company will comply with the Securities Act and the Exchange Act so as to permit the
completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters and for the Company, to amend the Registration Statement in order that the Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package or the Prospectus,
as the case may be, will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Initial Sale Time or at the
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time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or
supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any applicable federal securities law, the Company will (i) notify the Representatives of any such event, development or condition and
(ii) promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the
Prospectus comply with such law, and the Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
f) Blue Sky Compliance. The Company shall (i) cooperate with the Representatives and counsel for the Underwriters to qualify or
register the Securities for sale under (or obtain exemptions from the application of) the state or non-U.S. securities or blue sky laws of those jurisdictions designated by the Representatives,
(ii) comply with such laws and (iii) continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. The Company shall not be required to qualify to transact business or to
take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business. The Company will advise the Representatives promptly of
the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the
issuance of any order suspending such qualification, registration or exemption, the Company shall use their reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.
g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described under
the caption “Use of Proceeds” in the Disclosure Package and the Prospectus.
h) Eligibility for Settlement. The Company
will cooperate with the Underwriters and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of the DTC.
i) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company shall file, on a timely basis (including any
extensions permitted by Rule 12b-25 under the Exchange Act), with the Commission and the NYSE all reports and documents required to be filed under the Exchange Act.
j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the date hereof and ending on the Closing
Date, the Company will not, without the prior written consent of the Representatives (which consent may be withheld at the sole discretion of the Representatives), directly or indirectly, sell, offer, contract or grant any option to sell, pledge,
transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act in respect of, any debt securities of the Company similar to the Securities or securities exchangeable for or convertible into debt securities similar to the Securities (other than as contemplated by
this Agreement with respect to the Securities).
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k) Final Term Sheet. The Company will prepare a final term sheet in a form approved
by the Representatives and attached as Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”). Any such
Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
l) Permitted Free Writing Prospectuses. The
Company represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representatives, it will not make, any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I or Annex II to this Agreement. Any such free writing prospectus consented to or
deemed to be consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in
Rule 433, and (b) contains only (i) information describing the preliminary terms of the Securities or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes
the final terms of the Securities or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k).
m) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its best efforts to cause such registration
statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness. The Company will take all other action reasonably necessary or appropriate to permit the public offering and sale
of the Securities to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall
include such new registration statement or post-effective amendment, as the case may be.
n) Filing Fees. The Company agrees to pay
the required Commission filing fees relating to the Securities within the time required by and in accordance with Rules 456(b)(1) and 457(r) of the Securities Act.
o) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion, waive in writing the performance by the Company of
any one or more of the foregoing covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. The
Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without limitation (i) all expenses incident to
the issuance and delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to the Underwriters, (iii) all
fees and expenses of the Company’s counsel, independent public or certified public accountants
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and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement
(including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Investor Presentation, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto,
during the Prospectus Delivery Period but not exceeding nine months after the date of the Initial Sale Time, and the mailing and delivering of copies thereof to the Underwriters and dealers involved in the offer and sale of the Securities, this
Agreement and the Indenture, (v) the costs and expenses relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged by the Company in connection with the road show presentations, travel and lodging expenses of the Company’s officers and other representatives and any
such consultants, and the cost of aircraft and other transportation chartered by the Company in connection with the road show, (vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the Underwriters in
connection with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale under the state securities or blue sky laws, and, if requested by the Representatives,
in an amount not to exceed $10,000, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vii) the filing fees incident to, and the
reasonable fees and expenses of counsel to the Underwriters in connection with, the review, if any, by the Financial Industry Regulatory Authority (“FINRA”) of the terms of the sale of the Securities (in an amount not to exceed
$10,000), (viii) the fees and expenses of the Trustee, including the reasonable fees and expenses of counsel for the Trustee in connection with the Indenture and the Securities, (ix) any fees payable in connection with the rating of the
Securities with the ratings agencies, (x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and expenses incurred in connection with the performance of
its obligations hereunder for which provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses on a pro rata basis, including the fees and
expenses of their counsel and travel and lodging expenses of any representatives of the Underwriters, including their proportionate share of any chartered aircraft or other transportation.
SECTION 5. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for
the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though
then made and to the timely performance by the Company of its respective covenants and other obligations hereunder, and to each of the following additional conditions:
a) Compliance with Registration Requirements; No Stop Order. For the period from and after the Execution Time and prior to the Closing
Date and, with respect to the Securities:
(i) the Company shall have filed the Prospectus with the Commission (including
the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;
(ii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433; and
(iii) no stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the
Registration Statement, shall be in effect and no proceedings for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened by the Commission; and the Company shall not have received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form.
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b) Accountants’ Comfort Letter. On the date hereof, the Representatives shall
have received from PricewaterhouseCoopers LLP, independent registered public accountants for the Company, a letter dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representatives with respect to the
audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, independent
registered public accountants for the Company, a letter dated such date, in form and substance reasonably satisfactory to the Representatives, to the effect that they reaffirm the statements made in the letter furnished by them pursuant to
subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
d) No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the
Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any debt securities or preferred equity securities of the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act.
e) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have received the opinion of Gibson,
Dunn & Crutcher LLP, counsel for the Company, dated as of such Closing Date, in the form previously agreed between such counsel and counsel for the Underwriters.
f) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall have received the opinion of Cravath,
Swaine & Moore LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
g) Officers’ Certificate. On the Closing Date, the Representatives shall have received a written certificate executed by the
Chief Executive Officer or a Senior Vice President of the Company and the principal financial or accounting officer of the Company on behalf of the Company, dated as of such Closing Date, to the effect that:
(i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for
such purpose have been instituted or, to the knowledge of such officers, threatened by the Commission;
(ii) the Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form;
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(iii) the representations and warranties of the Company set forth in
Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such Closing Date; and
(iv) the Company has satisfied all the conditions and complied in all material respects with all the agreements hereunder on
their respective parts to be satisfied or performed hereunder at or prior to such Closing Date.
h) Depositary. The Securities
shall have been determined eligible for clearance and settlement through the facilities of the DTC.
i) Additional Documents. At
the Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities
as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or fulfillment of the agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by
the Representatives by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8, 9, 17 and 18 shall at all times be
effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters’ Expenses. If this Agreement is
terminated by the Representatives pursuant to Section 5 or 11(i), or if the sale to the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or to comply with any provision hereof, the Company agrees to reimburse the Underwriters severally, upon demand for all out-of-pocket expenses that
shall have been reasonably incurred by the Representatives and the Underwriters in connection with the proposed purchase and the offering and sale of the Securities, including but not limited to fees and expenses of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
SECTION 7. Effectiveness of this Agreement. This Agreement shall
not become effective until the execution of this Agreement by the parties hereto.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors,
employees, officers, selling agents and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such Underwriter or
such affiliate, director, employee, officer, selling agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based
(i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Other Free Writing Prospectus, any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus, the Investor Presentation (or any amendment or supplement
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thereto) or any roadshow or investor presentation made to investors by the Company (whether in person or electronically) or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and to reimburse each Underwriter and each such affiliate, director, employee, officer, selling agent and controlling person for
any and all expenses (including the reasonable fees and expenses of counsel chosen by the Representatives) as such expenses are reasonably incurred by such Underwriter or such affiliate, director, employee, officer, selling agent or controlling
person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, that the foregoing indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to
the Company by any Underwriter expressly for use in the Registration Statement, any Other Free Writing Prospectus, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, the Investor Presentation (or any amendment or
supplement to any of the foregoing). The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b) Indemnification of the Company and its Directors and Officers. Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company and its directors, each of its officers who signs the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Other Free Writing Prospectus, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus, the Investor Presentation (or any amendment or supplement to any of the foregoing) or any roadshow or investor presentation made to investors by the Company (whether in person or
electronically) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Other Free Writing Prospectus, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the
Prospectus, the Investor Presentation (or any amendment or supplement to any of the foregoing), in reliance upon and in conformity with written information furnished to the Company by any Underwriter expressly for use therein; and to reimburse the
Company or any such director, officer or controlling person for any legal and other expense (including the reasonable fees and expenses of counsel) reasonably incurred by the Company or any such director, officer or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company hereby acknowledges that the only information furnished to the Company by any Underwriter expressly for use in
the Registration Statement, any Other Free Writing Prospectus, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus, the Investor Presentation (or any amendment or supplement thereto) or any roadshow or investor
presentation made to investors by the Company (whether in person or electronically) is the following information included under the caption “Underwriting” in such documents: (i) the names in the first column
“Underwriter” under the heading “Underwriting” in the table in the first paragraph; (ii) the first paragraph under the subcaption “Discounts”; (iii) the third sentence in the paragraph under the
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subcaption “New issue of notes” concerning certain market making activities of the underwriters; (iv) the first paragraph, second paragraph, the third paragraph and (except to
the extent any statement is with respect to the Company) the fourth paragraph under the subcaption “Short positions”; and (v) the second paragraph under the subcaption “Other relationships.” The indemnity agreement set
forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof, provided, that the failure to so notify the indemnifying party will not relieve it from any liability which it may have to any
indemnified party for contribution or otherwise than under the indemnity agreement contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party promptly after receiving such notice from such indemnified party;
provided, such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party, unless:
(i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall have reasonably
concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist
between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm, in the case of indemnified parties described in Section 8(a), shall be designated in writing by the relevant Underwriters and that all such reasonable fees and expenses shall be reimbursed as they are incurred).
Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
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SECTION 9. Contribution. If the indemnification provided for in Section 8
is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses)
received by the Company, and the total underwriting discount received by the Underwriters, in each case as set forth on the front cover page of the Prospectus bear to the aggregate initial public offering price of the Securities as set forth on such
cover page of the Prospectus. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each affiliate, director, employee, officer and selling agent of an Underwriter
and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who
signs the Registration Statement, and each person, if any, who controls the Company within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company.
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SECTION 10. Default of One or More of the Several Underwriters. If any one or
more of the several Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on the Closing Date, and the aggregate principal amount of Securities, which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts
of such Securities set forth opposite their respective names on Schedule A bears to the aggregate principal amount of such Securities set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase such Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such Closing Date. If any one or more of the Underwriters shall fail or refuse to purchase such Securities and the aggregate principal amount of such Securities with respect to which such default occurs exceeds 10%
of the aggregate principal amount of Securities to be purchased on the Closing Date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Securities are not made within 48 hours after such default, this
Agreement shall terminate without liability of any party to any other party except that the provisions of Sections 4, 6, 8, 9, 17 and 18 shall at all times be effective and shall survive such termination. In any such case, either the Representatives
or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, the Investor Presentation, any Issuer Free Writing Prospectus,
the Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term
“Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
SECTION 11. Termination of this Agreement. Prior to the Closing
Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time (i) trading or quotation in any of the Company’s securities shall have been suspended or limited by the Commission or the NYSE;
(ii) trading in securities generally on either the Nasdaq Stock Market or the NYSE shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such stock exchanges by the Commission or the
FINRA; (iii) a general banking moratorium shall have been declared by federal or New York banking authorities; (iv) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or calamity
involving the United States, or any change in the United States or international financial markets, as in the judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to market the Securities in the manner
and on the terms described in the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (v) in the judgment of the Representatives there shall have occurred any Material Adverse Change; or (vi) there
shall have occurred a material disruption in commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in
Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9, 17 and 18 shall survive such termination and remain in full force and effect.
SECTION 12. No Fiduciary Duty. The Company acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant
to this Agreement, including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on
the one hand, and the several Underwriters, on the other hand, and that the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(ii) in connection with each
22
transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary of
the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the
transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
The Company hereby waives and releases, to the fullest extent permitted by law, any claims that they may have against the several Underwriters
with respect to any breach or alleged breach of fiduciary duty.
SECTION 13. Representations and Indemnities to Survive
Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, of its officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and
in full force and effect, regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter, the
Company, the officers or employees of the Company, or any person controlling the Company, as the case may be or (B) acceptance of the Securities and payment for them hereunder and (ii) will survive delivery of and payment for the
Securities sold hereunder and any termination of this Agreement.
SECTION 14. Notices. All communications hereunder shall be
in writing and effective only upon receipt, and shall be mailed, hand delivered, transmitted via electronic mail or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
BofA
Securities, Inc.
114 West 47th Street
NY8-114-07-01
New York, NY 10036
Facsimile:
(212) 901-7881
Attention: High Grade Debt Capital Markets Transaction
Management/Legal
and
J.P. Morgan Securities LLC
270
Park Avenue
New York, NY 10017
Attention: Investment Grade Syndicate Desk
Facsimile: (212) 834-6081
and
23
Mizuho Securities USA LLC
1271 Avenue of the Americas
New
York, NY 10020
BA_DCM_Notices@mizuhogroup.com
Attention: Debt Capital Markets
with a copy to:
Cravath,
Swaine & Moore LLP
Two Manhattan West
375 Ninth Avenue
New York, New
York 10001
Facsimile: (212) 474-3700
Attention: Andrew J. Pitts
If
to the Company:
Flowserve Corporation
5215 N. O’Connor Blvd., Suite 700
Irving, Texas 75039
Email:
bezzell@flowserve.com
Attention: Brian Ezzell
with a copy to:
Gibson,
Dunn & Crutcher LLP
2001 Ross Avenue Suite 2100,
Dallas, Texas 75201
Email:
DRayburn@gibsondunn.com
Attention: Doug Rayburn
Any party hereto may change the address for receipt of communications by giving written notice to the others.
SECTION 15. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, including any
substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the affiliates, directors, employees, officers, selling agents and controlling persons referred to in Sections 8 and 9, and in each case their respective successors,
and no other person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Securities as such from any of the Underwriters merely by reason of such purchase.
SECTION 16. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement
shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
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SECTION 17. Governing Law Provisions. (a) THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions
contemplated hereby (“Related Proceedings”) may be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, or the courts of the State of New York in each
case located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the
enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive
any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought
in any such court has been brought in an inconvenient forum.
SECTION 18. Research Analyst Independence. The Company
acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such
Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, its subsidiaries and/or the offering of the Securities that differ from the views of
their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by applicable law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may
arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking
divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and
hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
SECTION 19. Recognition of the U.S. Special Resolution Regimes.
a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the
transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any
such interest and obligation, were governed by the laws of the United States or a state of the United States.
b) In the event that any
Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted
to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 19:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k).
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“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R.
§§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal
Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 20. General Provisions. This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject matter hereof. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the
same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart
so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or
implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to assure that adequate disclosure has been
made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
26
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours,
FLOWSERVE CORPORATION
By:
/s/ Brian Ezzell
Name: Brian Ezzell
Title: VP – Treasurer, Investor Relations and Corporate
Finance
[Signature Page to
Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriters as
of the date first above written.
BOFA SECURITIES, INC.
By:
/s/ Christopher Cote
Name: Christopher Cote
Title: Managing Director
J.P. MORGAN SECURITIES LLC
By:
/s/ Saee Athalye
Name: Saee Athalye
Title: Vice President
MIZUHO SECURITIES USA LLC
By:
/s/ Justin T. Surma
Name: Justin T. Surma
Title: Managing Director
[Signature Page to
Underwriting Agreement]
SCHEDULE A
Underwriters
Aggregate Principal
Amount of
Securities to be
Purchased
BofA Securities, Inc.
$
115,000,000
J.P. Morgan Securities LLC
$
115,000,000
Mizuho Securities USA LLC
$
115,000,000
BNP Paribas Securities Corp.
$
30,000,000
BBVA Securities Inc.
$
15,000,000
BMO Capital Markets Corp.
$
15,000,000
Citigroup Global Markets Inc.
$
15,000,000
Credit Agricole Securities (USA) Inc.
$
15,000,000
MUFG Securities Americas Inc.
$
15,000,000
Wells Fargo Securities, LLC
$
15,000,000
Fifth Third Securities, Inc.
$
7,000,000
Huntington Securities, Inc.
$
7,000,000
Loop Capital Markets LLC
$
7,000,000
Scotia Capital (USA) Inc.
$
7,000,000
UniCredit Capital Markets LLC
$
7,000,000
Total
$
500,000,000
ANNEX I
Issuer Free Writing Prospectuses Included in Pricing Disclosure Package
Final Term Sheet dated May 5, 2026
ANNEX II
Other Free
Writing Prospectuses
Electronic (Net roadshow) road show of the Company used in connection with the offering of the Securities
EXHIBIT A
Form of Final Term Sheet
Free Writing
Prospectus
(To Prospectus dated March 28, 2025 and
Preliminary Prospectus Supplement dated May 5, 2026 (the “Preliminary Prospectus Supplement”))
$500,000,000
Flowserve
Corporation
5.700% Senior Notes due 2036 (the “Notes”)
Final Term Sheet
May 5, 2026
Issuer:
Flowserve Corporation
Size:
$500,000,000
Offering Format:
SEC Registered
Maturity Date:
May 15, 2036
Coupon (Interest Rate):
5.700%
Yield to Maturity:
5.718%
Spread to Benchmark Treasury:
130 bps
Benchmark Treasury:
4.125% due February 15, 2036
Benchmark Treasury Yield:
4.418%
Price to Public:
99.864% of the principal amount
Interest Payment Dates:
Semiannually on May 15 and November 15, commencing November 15, 2026
Make-Whole Call:
Prior to February 15, 2036 (three months prior to the Maturity Date) (the “Par Call Date”), the Issuer may redeem the Notes at the Issuer’s option, in whole or in part, at any time and from time to time, at a
redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to
the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined in the Preliminary Prospectus Supplement) plus 20 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid
interest thereon to the redemption date.
Par Call:
On or after the Par Call Date, the Issuer may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid
interest thereon to the redemption date.
Special Mandatory Redemption:
In the event that (i) the Trillium Flow Acquisition is not consummated on or prior to February 4, 2027 or such later date as the parties to the purchase agreement may agree as the “Longstop Date” thereunder, or
(ii) the purchase agreement related thereto is terminated without the Trillium Flow Acquisition being consummated, the Issuer will be required to redeem all of the outstanding Notes at a redemption price equal to 101% of the aggregate principal
amount of such Notes plus accrued and unpaid interest thereon, if any, to the redemption date.
Change of Control Offer:
If a Change of Control Triggering Event (as defined in the Preliminary Prospectus Supplement) occurs with respect to the Notes, the Issuer will be required, subject to certain conditions, to offer to repurchase the Notes at a
purchase price equal to 101% of their principal amount, plus accrued and unpaid interest to the date of repurchase.
Trade Date:
May 5, 2026
Settlement Date*:
May 12, 2026 (T+5)
CUSIP / ISIN:
34354P AG0 / US34354PAG00
Joint Book-Running Managers:
BofA Securities, Inc.
J.P. Morgan Securities LLC
Mizuho Securities
USA LLC
Passive Bookrunner:
BNP Paribas Securities Corp.
Co-Managers:
BBVA Securities Inc.
BMO Capital Markets
Corp.
Citigroup Global Markets Inc.
Credit Agricole
Securities (USA) Inc.
MUFG Securities Americas Inc.
Wells
Fargo Securities, LLC
Fifth Third Securities, Inc.
Huntington
Securities, Inc.
Loop Capital Markets LLC
Scotia Capital
(USA) Inc.
UniCredit Capital Markets LLC
Expected Ratings**:
[Intentionally Omitted]
*
It is expected that delivery of the Notes will be made against payment for the Notes on or about May 12,
2026, which will be the fifth business day following the date hereof (this settlement cycle being referred to as T+5). Under Rule 15c6-1 of the Securities Exchange Act of 1934, as amended, trades in the
secondary market generally are required to settle in one business day, unless the parties to a trade expressly agree otherwise. Accordingly, purchasers who wish to trade Notes prior to one business day before the settlement date will be required, by
virtue of the fact that the Notes initially will settle in T+5, to specify alternative settlement arrangements to prevent a failed settlement.
**
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time.
The Issuer has filed a registration statement, including a prospectus, with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the Issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Joint Book-Running Managers in the offering will arrange to send you the prospectus if you request it toll free by calling BofA
Securities, Inc. toll-free at (800) 294-1322, J.P. Morgan Securities LLC collect at (212) 834-4533 or Mizuho Securities USA LLC toll-free at (866) 271-7403.
Any disclaimer or other notice that may appear below is not applicable to this communication and should
be disregarded. Such disclaimer or notice was automatically generated as a result of this communication being sent by Bloomberg or another email system.
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