DuPont de Nemours, Inc 8-K, filed May 1, 2020
DuPont de Nemours, Inc. (DD)
About this 8-K
DuPont de Nemours, Inc filed this 8-K on May 1, 2020.
Items reported
- Item 1.02: Ended a material agreement
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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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 1.02 | Termination of a Material Definitive Agreement. |
As discussed further under Item 8.01 below, the $2.0 billion 364-Day Term Credit Agreement dated as of April 16, 2020 (the “Term Credit Agreement”), between DuPont de Nemours, Inc., a Delaware corporation (the “Company”), the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, has been terminated effective May 1, 2020, in connection with the offering of the Notes (as defined below). The Term Credit Agreement provided delayed draw term loan commitments to the Company from November 1, 2020 until March 1, 2021.
| Item 8.01 | Other Events. |
On May 1, 2020, the Company completed an underwritten public offering of senior unsecured notes (the “Notes”) in the aggregate principal amount of $2,000,000,000 of 2.169% Notes due May 1, 2023. The Notes were issued pursuant to the Company’s registration statement on Form S-3 (File No. 333-227202), filed with the Securities and Exchange Commission on September 5, 2018.
The Notes were issued under an Indenture, dated November 28, 2018 (the “Base Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, dated May 1, 2020, between the Company and the Trustee (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). The Notes are senior unsecured obligations of the Company.
Interest is payable on the Notes on May 1 and November 1 of each year beginning on November 1, 2020, until their maturity date. The Company may redeem the Notes prior to their maturity at its option, any time in whole or from time to time in part, as described in the Indenture.
On December 15, 2019, the Company and Nutrition & Biosciences, Inc. (presently a wholly owned subsidiary of the Company) (“N&B Inc.”), entered into definitive agreements, including the merger agreement, with International Flavors & Fragrances Inc. (“IFF”), and Neptune Merger Sub I Inc. (a wholly owned subsidiary of IFF) (“Merger Sub I”), pursuant to which and subject to the terms and conditions therein, (1) the Company will transfer its Nutrition & Biosciences business to N&B Inc., (2) the Company will distribute to its stockholders all of the issued and outstanding shares of common stock of N&B Inc. held by it by way of either (at the Company’s option) a pro rata dividend or an exchange offer or a combination of both, and (3) Merger Sub I will merge with and into N&B Inc., with N&B Inc. as the surviving corporation (the “N&B Merger”). The N&B Merger is expected to close by the end of the first quarter of 2021, subject to approval by IFF shareholders and other customary closing conditions, including regulatory approvals and receipt by the Company of an opinion of tax counsel.
Upon consummation of the N&B Merger, the Company will be required to mail a notice of redemption to holders of the Notes, with a copy to the Trustee, setting forth the date of redemption of all of the Notes on the date (“Special Mandatory Redemption Date”) that is the later of (i) three (3) Business Days after the consummation of the N&B Merger and (ii) May 1, 2021. On the Special Mandatory Redemption Date, the Company will be required to redeem all of the Notes at a redemption price equal to 100% of the aggregate principal amount of the Notes plus accrued and unpaid interest, if any, to but excluding the Special Mandatory Redemption Date.
Additionally, if a change of control triggering event occurs in respect of the Notes, the Company will be required to offer to repurchase the Notes for cash at a purchase price equal to 101% of the principal amount of such Notes, plus accrued and unpaid interest, if any, to but excluding the date of purchase. The Indenture also contains certain limitations on the Company’s ability to incur liens and enter into sale lease-back transactions, as well as customary events of default.
On April 16, 2020, the Company entered into a new unsecured $2.0 billion Term Credit Agreement. The Term Credit Agreement has been terminated in connection with the closing of this offering.
A copy of the Base Indenture is attached hereto as Exhibit 4.1 to this Current Report on Form 8-K, and is incorporated herein by reference. A copy of the Second Supplemental Indenture is attached hereto as Exhibit 4.2 to this Current Report on Form 8-K, and is incorporated herein by reference. The above description of the material terms of the Base Indenture, the Second Supplemental Indenture and the Notes does not purport to be complete and is qualified in its entirety by reference to such Exhibits.
In connection with the offering of the Notes, the Company is filing an Underwriting Agreement, among the Company and BofA Securities, Inc., Citigroup Global Markets Inc. and MUFG Securities Americas Inc., as representatives of the several underwriters named therein, attached as Exhibit 1.1 to this Current Report on Form 8-K.
In connection with the offering of the Notes, the Company is filing a legal opinion regarding the validity of the Notes, attached as Exhibit 5.1 to this Current Report on Form 8-K.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
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| 4.1 |
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| 5.1 |
Opinion of Erik T. Hoover, Senior Vice President and General Counsel of the Company | |||
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This cover page from this Current Report on Form 8-K, formatted in Inline XBRL. |
SIGNATURE
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.
| DUPONT DE NEMOURS, INC. Registrant | ||||||
| Date: May 1, 2020 |
By: |
/s/ Michael G. Goss | ||||
| Name: |
Michael G. Goss | |||||
| Title: |
Vice President and Controller | |||||
Exhibit 1.1
EXECUTION VERSION
DUPONT DE NEMOURS, INC.
Debt Securities
UNDERWRITING AGREEMENT
April 28, 2020
Ladies and Gentlemen:
DuPont de Nemours, Inc., a Delaware corporation (the “Company”), proposes to issue and sell from time to time certain of its debt securities registered under the registration statement referred to in Section 1(a) (“Securities”). The Securities will be issued under an indenture, dated as of November 28, 2018, between the Company and U.S. Bank National Association, as Trustee, as supplemented through the Closing Date, as defined below (the “Indenture”), and will have varying designations, interest rates and times of payment of any interest, maturities, redemption provisions and other terms, with all such terms for any particular series of the Securities being determined at the time of the sale. Particular series of the Securities may be sold to you and to such other firms on whose behalf you may act for resale in accordance with terms of offering determined at the time of sale. The Securities involved in any such offering are hereinafter referred to as the “Purchased Securities.” The firm or firms which agree to purchase the same are hereinafter referred to as the “Underwriters” of such Purchased Securities, and the representative or representatives of the Underwriters, if any, specified in a Terms Agreement referred to in Section 3 are hereinafter referred to as the “Representatives”; provided, however, that if such Terms Agreement does not specify any representative of the Underwriters, the term “Representatives” as used in this Agreement with respect to the Purchased Securities that are the subject of such Terms Agreement (other than in Section 5(a)), shall mean the Underwriters. The term “you” or “your,” when used with reference to any particular offering of Purchased Securities, shall refer to those of you who are Underwriters with respect to such Purchased Securities.
Section 1. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriters with respect to each offering of Purchased Securities that:
(a) A registration statement (No. 333-227202), including a prospectus, relating to the Securities has been filed with the Securities and Exchange Commission (the “Commission”) and has become effective. “Registration Statement” as of any time means such registration statement in the form then filed with the Commission, including any amendment thereto, any document incorporated by reference therein and any information in a prospectus or prospectus supplement deemed or retroactively deemed to be part thereof pursuant to Rule 430B (“Rule 430B”) or 430C (“Rule 430C”) under the Securities Act of 1933 (the “Act”) that has not been superseded or modified. “Registration Statement” without reference to a time means the Registration Statement as of the time of the first contract of sale for the Purchased Securities.
For purposes of this definition, information contained in a form of prospectus or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B. “Prospectus” means the final prospectus supplement and prospectus relating to the Purchased Securities filed by the Company with the Commission pursuant to Rule 424(b) under the Act (“Rule 424(b)”).
(b) The Registration Statement and the Prospectus comply in all material respects with the requirements of the Act, the Trust Indenture Act of 1939 (the “Trust Indenture Act”) and the rules and regulations of the Commission (“Rules and Regulations”), and neither of such documents includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of the Prospectus, in the light of the circumstances under which they were made, except that these representations and warranties in this Section 1(b) do not apply to statements in or omissions from the Registration Statement or the Prospectus based upon information furnished to the Company by or on behalf of the Underwriters expressly for use therein.
(c) As of the applicable time set forth in the Terms Agreement (the “Applicable Time”), the Statutory Prospectus, together with the Issuer Free Writing Prospectus appearing as Schedule A to the Terms Agreement for the Purchased Securities (collectively, the “General Disclosure Package”), does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that these representations and warranties do not apply to statements in or omissions from the General Disclosure Package based upon information furnished to the Company by or on behalf of the Underwriters expressly for use therein.
As used in this paragraph and elsewhere in this agreement, “Statutory Prospectus” as of any time means the prospectus relating to the Purchased Securities that is included in the Registration Statement immediately prior to the Applicable Time. For purposes of this definition, information contained in a form of prospectus that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Statutory Prospectus as of the time that form of prospectus is actually filed with the Commission pursuant to Rule 424(b).
(d) The Company is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Act, in each case at the times specified in the Act in connection with the offering of the Securities. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(e) Each Issuer Free Writing Prospectus listed in the Terms Agreement does not conflict with the information contained in the Registration Statement, the Statutory Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the General Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements in or omissions from an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by the Underwriters expressly for use therein.
(f) Neither the Company nor any of its subsidiaries, nor, to the Company’s knowledge, any director, officer or employee of the Company or of any of its subsidiaries in the course of his or her actions for or on behalf of the Company or of any of its subsidiaries, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to unlawfully influence official action or secure an improper advantage; and the Company and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws in all material respects and the Company has instituted and maintains policies and procedures reasonably designed to ensure compliance with the Foreign Corrupt Practices Act of 1977, as amended.
(g) To the knowledge of the Company, the operations of the Company and its subsidiaries are and for the past five years have been conducted in compliance in all material respects with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or binding guidelines, issued, administered or enforced by any governmental agency with jurisdiction over the Company or any of its subsidiaries (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(h) Neither the Company nor any of its subsidiaries, nor, to the Company’s knowledge, any director, officer or employee of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is controlled by a Person that is, the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), the United Nations Security Council (UN), the European Union (EU), Her Majesty’s Treasury (UK HMT) or other relevant sanctions authority (collectively, “Sanctions”), nor located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria). The Company will not use the proceeds of the offering to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions.
(i) The pro forma financial statements, if any, included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus include assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments give appropriate effect to those assumptions, the pro forma columns therein reflect a proper application of those adjustments to the corresponding historical financial statement amounts, and the pro forma financial statements included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus comply in all material respects with the applicable accounting requirements of Regulation S-X under the Act.
(j) Except as disclosed in or contemplated by each of the Registration Statement, the General Disclosure Package, and the Prospectus, and except as would not have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), business, properties or results of operations of the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”), the Company and its consolidated 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 in all material respects as required in connection with the operation of the business of the Company and its consolidated subsidiaries as currently conducted, free and clear of, to the knowledge of the Company and its consolidated subsidiaries, all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. Except as would not have, individually or in the aggregate, a Material Adverse Effect, the Company and its consolidated subsidiaries have implemented and maintained commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and, to the knowledge of the Company and its consolidated subsidiaries, there have been no breaches, violations, outages or unauthorized uses of or accesses to the same, except for those that have been remedied without material cost or liability or the duty to
notify any other person, nor any incidents under internal review or investigations relating to the same. Except as would not have, individually or in the aggregate, a Material Adverse Effect, the Company and its consolidated subsidiaries are, to the knowledge of the Company and its consolidated subsidiaries, presently in material 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.
(k) Except as disclosed in or contemplated by each of the Registration Statement, the General Disclosure Package, and the Prospectus, and except as would not have, individually or in the aggregate, a Material Adverse Effect, the Company and its subsidiaries (x) are in compliance with all applicable federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating to the environment, natural resources, pollution, hazardous or toxic substances or wastes, or the protection of human health or safety (collectively, “Environmental Laws”); (y) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses as presently conducted; and (z) have not received written notice alleging that the Company or its subsidiaries have any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice; and (ii) the Company and its subsidiaries have no costs or liabilities relating or pursuant to Environmental Laws, except in the case of each of (i) and (ii) herein, for any such matter as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and (iii) except as disclosed in or contemplated by each of the Registration Statement, the General Disclosure Package and the Prospectus,(x) there is no proceeding that is pending, or that is known to be contemplated, against the Company or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceeding regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws, that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the Company or its subsidiaries anticipates incurring capital expenditures required by or relating or pursuant to any Environmental Laws that would reasonably be expected to have a Material Adverse Effect.
Section 2. Representations and Warranties of the Company and the Underwriters. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Purchased Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433 (“Rule 433”) under the Act, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, other than the final term sheet prepared and filed pursuant to Section 4(h) of this Agreement and one or more term sheets relating to the Purchased Securities containing customary information and conveyed to purchasers of the Purchased Securities; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses listed in the Terms Agreement. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an issuer free writing prospectus (as defined in Rule 433, an “Issuer Free Writing Prospectus”) and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
Section 3. Purchase and Offering. The obligations of the Underwriters to purchase the Purchased Securities will be evidenced by an exchange of telegraphic or other written communications substantially in the form of Schedule I attached hereto (“Terms Agreement”) at each time the Company determines to sell Purchased Securities. Each Terms Agreement shall incorporate by reference the provisions of this Agreement, except as otherwise provided therein, and shall specify the firms which will be Underwriters, the principal amount of Purchased Securities to be purchased by each Underwriter, the purchase price to be paid by the Underwriters and the terms of the Purchased Securities not otherwise specified in the Indenture, including, but not limited to, interest rates, if any, maturity, redemption provisions and sinking fund requirements. Each Terms Agreement shall also specify the time and date of delivery and payment for the Purchased Securities (the “Closing Date”) and any details of the terms of offering which should be reflected in the prospectus supplement relating to the offering of the Purchased Securities. Such prospectus supplement shall set forth the terms contained in the Terms Agreement and such other information that the Representatives and the Company agree at the time of execution of the Terms Agreement should be included in the prospectus supplement. The obligations of the Underwriters to purchase the Purchased Securities shall be several and not joint. It is understood that the Underwriters propose to offer the Purchased Securities for sale as set forth in such prospectus supplement. The Purchased Securities will be issued in definitive or book-entry form in such denominations and registered in such names as the Underwriters request.
Section 4. Covenants of the Company. In connection with each offering of Purchased Securities, the Company covenants and agrees with the Underwriters that:
(a) If at any time when, in the opinion of counsel for the Underwriters, a prospectus relating to the Purchased Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 thereunder) any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Registration Statement or the Prospectus to comply with the Act or the Rules or Regulations thereunder, the Company promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission, or an amendment which will effect such compliance and furnish, at its own expense, a reasonable number of copies of such amendment or supplement to you.
(b) The Company will furnish to the Representatives copies of the Registration Statement, the Prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you reasonably request; provided that no Statutory Prospectuses shall be required to be delivered to the Representatives in printed form.
(c) Before amending or supplementing the Registration Statement or the Prospectus with respect to any Purchased Securities, the Company will furnish you a copy of each proposed amendment or supplement.
(d) The Company will promptly advise the Representatives of (i) the institution by the Commission of any stop order in respect of the Registration Statement or the threatening of any proceeding for that purpose and (ii) the receipt by the Company of any notification with respect to the suspension of the qualification of the Purchased Securities in any jurisdiction or the institution or threatening of any proceedings for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible withdrawal thereof.
(e) The Company will arrange for the qualification of the Purchased Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as you designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Purchased Securities, in any jurisdiction where it is not now so subject.
(f) Not later than 45 days after the end of the 12-month period beginning at the end of any fiscal quarter of the Company during which the Closing Date occurs, the Company will make generally available to its security holders an earnings statement covering such 12-month period which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(g) The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) expenses incurred in distributing the Statutory Prospectus and the Prospectus (including any amendments and supplements thereto), (ii) any fees charged by rating agencies for rating the Purchased Securities and (iii) all expenses incurred by the Company in connection with any “road show” presentation to potential investors, and will reimburse the Underwriters for any expenses (including fees and disbursements of counsel) incurred in connection with state securities or Blue Sky qualifications of the Purchased Securities for sale and determination of their eligibility for investment under the laws of such jurisdictions as you designate and printer’s fees relating thereto.
(h) Until one business day after the Closing Date, the Company will not offer, sell, contract to sell or announce the offering of any of its debt securities (other than the Purchased Securities) covered by any registration statement filed under the Act without prior written notice to you.
(i) The Company will prepare a final term sheet, containing solely a description of the Purchased Securities, in the form of Schedule A to the Terms Agreement and file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(j) If there occurs an event or development as a result of which the General Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will notify promptly the Representatives so that any use of the General Disclosure Package may cease until it is amended or supplemented.
(k) The Company has not taken, and will not take, directly or indirectly, any action that is designed, or would reasonably be expected, to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Purchased Securities or to result in a violation of Regulation M under the Exchange Act.
Section 5. Conditions. The several obligations of the Underwriters to purchase and pay for any issue of Purchased Securities hereunder will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Subsequent to the execution of the Terms Agreement there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the business or properties of the Company or its subsidiaries which, in the judgment of a majority in interest of the Underwriters (including any Representatives), materially impairs the investment quality of the Purchased Securities or (ii) any downgrading in the rating of the Company’s debt securities or preferred stock by Moody’s Investors Service, Inc., Standard & Poor’s Financial Services LLC or Fitch Ratings Ltd.
(b) No stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriters, shall be contemplated by the Commission.
(c) The Underwriters shall have received the following:
(1) Letters of (A) PricewaterhouseCoopers LLP and (B) Deloitte and Touche LLP dated the date of the Terms Agreement and the Closing Date, in form and substance satisfactory to you, with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus.
(2) An opinion of the General Counsel or any Assistant General Counsel of the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(3) A letter of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Company, dated as of the Closing Date, to the effect set forth in Exhibit B hereto.
(4) An opinion or opinions of counsel for the Underwriters as to such of the matters stated in clauses (2) and (3) above as you shall request.
(5) A certificate of any one of the Chief Executive Officer, Chief Financial Officer, General Counsel, the Corporate Secretary, the Controller or any Assistant Corporate Secretary of the Company, dated the Closing Date, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct, that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and that, subsequent to the dates of the most recent financial statements in the Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the business, financial position or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the General Disclosure Package and the Prospectus or as described in such certificate.
(6) Certificates, dated as of the date of the Closing Date, signed by the Chief Financial Officer or the Controller of the Company, with respect to certain financial data contained in or incorporated by reference in each of the General Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Underwriters.
Section 6. Indemnification. (a) The Company will indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of the Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or such controlling persons may become subject, under the Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the General Disclosure Package, any Issuer Free Writing Prospectus, the Statutory Prospectus, the Registration Statement, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the case of the General Disclosure Package, the Statutory Prospectus or any Issuer Free Writing Prospectus, in the light of the circumstances under which they were made, not misleading; and will reimburse each Underwriter and each such controlling person, as incurred, for any legal or other expenses reasonably incurred by such Underwriter or such controlling person in connection with investigating or defending any such loss, claim, damage, liability or action, provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any such documents in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter specifically for use therein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) The Underwriters, severally, will indemnify and hold harmless the Company, each of its directors, each of its officers who have signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Act, against any losses, claims, damages or liabilities to which the Company or any such director, officer or controlling person may become subject, under the Act or otherwise, insofar as such losses, claims, damages, or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the General Disclosure Package, any Issuer Free Writing Prospectus, the Statutory Prospectus, the Registration Statement, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in the case of the General Disclosure Package, the Statutory Prospectus or any Issuer Free Writing Prospectus, in the light of the circumstances under which they were made, 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 reliance upon and in conformity with written information furnished to the Company by such Underwriter specifically for use therein; and will reimburse, as incurred, any legal or other expenses reasonably incurred by the Company or any such director, officer or controlling person in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which such Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the “Indemnified Party”) shall promptly notify the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others the Indemnifying Party may designate in such proceeding and shall pay the fees and disbursements reasonably incurred of such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Indemnifying Party and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Indemnifying Party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm for all such Indemnified Parties. Such firm shall be designated in writing by the Representatives in the case of parties indemnified pursuant to Section 6(a) and by the Company in the case of parties indemnified pursuant to Section 6(b). No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened action in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party unless such settlement (i) includes an unconditional release of such Indemnified Party from all liability on any claims that are the subject matter of such action 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 an Indemnified Party. The Indemnifying Party 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 from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an Indemnified Party, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Purchased Securities 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 of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claim, damages or liabilities, as well as any other relevant equitable consideration. The relative benefits received by the Company on the one hand and the Underwriters on the other in connection with the offering of the Purchased Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of such Securities (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters in respect thereof. The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Purchased Securities underwritten and distributed to the public by such Underwriter were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 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 are several in proportion to the respective principal amounts of Purchased Securities purchased by such Underwriters and not joint.
Section 7. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Purchased Securities under any Terms Agreement and the aggregate principal amount of Purchased Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total principal amount of Purchased Securities, you may make arrangements satisfactory to the Company for the purchase of such Purchased Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments under such Terms Agreement, to purchase the Purchased Securities which such defaulting Underwriters agreed but failed to purchase. If any Underwriter or Underwriters so default and the aggregate principal amount of Purchased Securities with respect to which such default or defaults occur is more than 10% of the total principal amount of Purchased Securities and arrangements satisfactory to you and the Company are not made within thirty-six hours after such default, such Terms Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 11. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section. The foregoing obligations and agreements set forth in this Section will not apply if the Purchased Securities are being purchased pursuant to a “bought deal” which is identified as such in the Terms Agreement. Nothing herein will relieve a defaulting Underwriter from liability for its default.
Section 8. Termination. If Purchased Securities are being purchased pursuant to a “firm bid” which is identified as such in the Terms Agreement, such Terms Agreement shall be subject to termination in your absolute discretion, by notice given to the Company prior to delivery of and payment for the Purchased Securities, if prior to such time there shall have occurred (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market if, in your judgment, the effect of any such suspension makes it impractical or inadvisable to proceed with solicitations of purchases of, or sales of, Purchased Securities; (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in your judgment, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Purchased Securities.
Section 9. Acknowledgements. The Company acknowledges that in connection with the offering of the Purchased Securities: (a) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, (b) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and any Terms Agreement and (c) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty owed to the Company in connection with the offering of the Purchased Securities.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
Section 10. Entire Agreement. This Agreement and the Terms Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Purchased Securities, represent the entire agreement between the Company and the Underwriters with respect to the preparation of the Prospectus and the General Disclosure Package, and the conduct of the offering, and the purchase and sale of the Purchased Securities.
Section 11. Survival of Representations, Warranties, etc. The respective representations, warranties, agreements and indemnities of the Company and the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters or the Company or any of its officers or directors or any controlling person, and will survive delivery of and payment for the Purchased Securities. If any Terms Agreement is terminated pursuant to Section 8 or if for any reason the purchase of the Purchased Securities by the Underwriters pursuant to such Terms Agreement is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 4(f) and the respective obligations of the Company and the Underwriters pursuant to Section 6 shall remain in effect. If any Terms Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement or under such Terms Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement or under such Terms Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated such Terms Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and expenses of their counsel) reasonably incurred by them in connection with the Purchased Securities.
Section 12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 6 hereof, and no other person will have any right or obligation hereunder.
Section 13. Counterparts. This Agreement may be executed in one or more counterparts and it is not necessary that signatures of all parties appear on the same counterpart, but such counterparts together shall constitute but one and the same agreement.
Section 14. 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 State.
(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.
For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 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 15. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Company and each Underwriter hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby or thereby. The Company and each Underwriter irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby or thereby in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
Section 16. Waiver of Jury Trial. The Company and each Underwriter hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement, any Terms Agreement or the transactions contemplated hereby or thereby.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to us the enclosed duplicate hereof, whereupon it will become a binding agreement between the Underwriters and the Company in accordance with its terms.
| Very truly yours, | ||
| DUPONT DE NEMOURS, INC. | ||
| By: | /s/ Lori Koch | |
| Name: Lori Koch | ||
| Title: Chief Financial Officer | ||
[Signature Page to the Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
BofA Securities, Inc.
For themselves and as Representatives of
the several Underwriters named in Schedule B to
the Terms Agreement dated the date hereof
| BOFA SECURITIES, INC. | ||
| By: | /s/ Laurie Campbell | |
| Name: Laurie Campbell | ||
| Title: Managing Director | ||
[Signature Page to the Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Citigroup Global Markets Inc.
For themselves and as Representatives of
the several Underwriters named in Schedule B to
the Terms Agreement dated the date hereof
| CITIGROUP GLOBAL MARKETS INC. | ||
| By: | /s/ Brian D. Bednarski | |
| Name: Brian D. Bednarski | ||
| Title: Managing Director | ||
[Signature Page to the Underwriting Agreement]
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
MUFG Securities Americas Inc.
For themselves and as Representatives of
the several Underwriters named in Schedule B to
the Terms Agreement dated the date hereof
| MUFG SECURITIES AMERICAS INC. | ||
| By: | /s/ Richard Testa | |
| Name: Richard Testa | ||
| Title: Managing Director | ||
[Signature Page to the Underwriting Agreement]
SCHEDULE I
DUPONT DE NEMOURS, INC.
(the “Company”)
Debt Securities
TERMS AGREEMENT
April 28, 2020
DuPont de Nemours, Inc.
Attention: 974 Centre Road
Building 730
Wilmington, DE 19805
Ladies and Gentlemen:
On behalf of the several Underwriters named in Schedule B hereto and for their respective accounts, we offer to purchase, severally and not jointly, on and subject to the terms and conditions of the Underwriting Agreement dated April 28, 2020 (the “Underwriting Agreement”) the following securities (the “Notes”) on the following terms:
| Title of Securities: | 2.169% Notes due 2023 (the “Notes”). | |
| Aggregate Principal Amount Offered: | $2,000,000,000. | |
| Interest Rate: | 2.169% per annum. | |
| Maturity Date: | May 1, 2023. | |
| Optional Redemption: | The Company may redeem the Notes prior to their maturity at its option for cash, any time in whole or from time to time in part, at the redemption price described in the prospectus supplement under “Description of Notes—Optional Redemption.” | |
| Special Mandatory Redemption: | If the N&B Merger (as defined under “Description of Notes—Special Mandatory Redemption” in the prospectus supplement) is consummated, the Company will be required to redeem each series of the Notes at a redemption price equal to 100% of the aggregate principal amount of such series of Notes plus accrued and unpaid interest, if any, to but not including the date of redemption. | |
| Purchase Price: | 99.600% plus accrued interest, if any, from May 1, 2020 | |
| Other Terms: | As described in the General Disclosure Package. | |
| Approved Issuer Free Writing Prospectuses pursuant to Section 2 of the Underwriting Agreement: | Final Term Sheet dated April 28, 2020, as filed pursuant to Rule 433. | |
| Applicable Time: | 4:45 P.M. | |
| Closing | 10:00 A.M. on May 1, 2020 at Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York. | |
| Trustee: | U.S. Bank National Association. | |
The respective principal amounts of the Notes to be purchased by each of the Underwriters are set forth opposite their names in Schedule B hereto.
The provisions of the Underwriting Agreement are incorporated herein by reference. This represents a “firm bid” for purposes of Section 8 of the Underwriting Agreement.
Each Underwriter, severally and not jointly, agrees in connection with the initial distribution of the Notes to comply with the selling restrictions set forth under the caption “Underwriting—Selling Restrictions” in the Company’s prospectus supplement, dated as of the date hereof, to the extent such selling restrictions are applicable to such Underwriter.
Please signify your acceptance of our offer by signing the enclosed response to us in the space provided and return it to us.
| Very truly yours, | ||
| BOFA SECURITIES, INC.
For themselves and as Representatives of the several Underwriters named in Schedule B
BOFA SECURITIES, INC. | ||
| By: | /s/ Laurie Campbell | |
| Name: Laurie Campbell | ||
| Title: Managing Director | ||
[Signature Page to the Terms Agreement]
Please signify your acceptance of our offer by signing the enclosed response to us in the space provided and return it to us.
| Very truly yours, | ||
| CITIGROUP GLOBAL MARKETS INC.
For themselves and as Representatives of the several Underwriters named in Schedule B
CITIGROUP GLOBAL MARKETS INC. | ||
| By: | /s/ Brian D. Bednarski | |
| Name: Brian D. Bednarski | ||
| Title: Managing Director | ||
[Signature Page to the Terms Agreement]
Please signify your acceptance of our offer by signing the enclosed response to us in the space provided and return it to us.
| Very truly yours, | ||
| MUFG SECURITIES AMERICAS INC.
For themselves and as Representatives of the several Underwriters named in Schedule B
MUFG SECURITIES AMERICAS INC. | ||
| By: | /s/ Richard Testa | |
| Name: Richard Testa | ||
| Title: Managing Director | ||
[Signature Page to the Terms Agreement]
SCHEDULE A
Free Writing Prospectus
Filed pursuant to Rule 433
Dated April 28, 2020
Relating to
Preliminary Prospectus Supplement dated April 28, 2020 to
Prospectus dated September 5, 2018
Registration Statement No. 333-227202
DuPont de Nemours, Inc.
Final Term Sheet
April 28, 2020
$2,000,000,000 2.169% Notes due 2023
| Issuer: | DuPont de Nemours, Inc. | |
| Title of Securities: | 2.169% Notes due 2023 (the “Notes”). | |
| Ratings (Moody’s / S&P / Fitch)*: | Baa1 / BBB+ / BBB+ (stable outlook / negative watch / stable outlook). | |
| Distribution: | SEC-registered. | |
| Trade Date: | April 28, 2020. | |
| Settlement Date (T+3)**: | May 1, 2020. | |
| Maturity Date: | May 1, 2023. | |
| Principal Amount Offered: | $2,000,000,000. | |
| Price to Public (Issue Price): | 100.000%. | |
| Yield to Maturity: | 2.169%. | |
| Interest Rate: | 2.169% per annum. | |
| Interest Payment Dates: | Interest on the Notes will accrue from May 1, 2020 and will be payable semi-annually in arrears on May 1 and November 1 of each year, commencing November 1, 2020. | |
| Benchmark Treasury: | 0.250% due April 15, 2023. | |
| Spread to Benchmark Treasury: | + 190 basis points. | |
| Benchmark Treasury Price: | 99-30 1⁄4. | |
| Benchmark Treasury Yield: | 0.269%. | |
| Optional Redemption: | Make-whole call at any time at the greater of 100% or the discounted present value of the remaining scheduled payments of principal and interest from the redemption date to the maturity date at Treasury Rate plus 30 basis points. | |
| Special Mandatory Redemption: | If the N&B Merger (as defined under “Description of Notes— Special Mandatory Redemption” in the prospectus supplement) is consummated, the Issuer will be required to redeem the Notes at a redemption price equal to 100% of the aggregate principal amount of the Notes plus accrued and unpaid interest, if any, to but not including the date of redemption. | |
| Joint-Bookrunners: | BofA Securities, Inc. MUFG Securities Americas Inc. BNP Paribas Securities Corp. Credit Suisse Securities (USA) LLC Goldman Sachs & Co. LLC J.P. Morgan Securities LLC Mizuho Securities USA LLC SMBC Nikko Securities America, Inc. | |
| Co-Managers: | HSBC Securities (USA) Inc. Santander Investment Securities Inc. SG Americas Securities, LLC TD Securities (USA) LLC ABN AMRO Securities (USA) LLC Scotia Capital (USA) Inc. Standard Chartered Bank U.S. Bancorp Investments, Inc. Citizens Capital Markets, Inc. Loop Capital Markets LLC Siebert Williams Shank & Co., LLC | |
Sch. A-2
| Denominations: | $2,000 and integral multiples of $1,000 in excess thereof. | |
| CUSIP: | 26614N AA0. | |
| ISIN: | US26614NAA00. | |
| * | A securities rating is not a recommendation to buy, sell, or hold securities and may be subject to revision or withdrawal at any time. |
| ** | It is expected that delivery of the Notes will be made against payment thereof on or about May 1, 2020, which will be the third business day following the date of pricing of the notes (such settlement cycle being herein referred to as “T+3”). Under Rule 15c6-1, under the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes on the date hereof or the next succeeding business day will be required, by virtue of the fact that the notes initially will settle T+3, to specify an alternate arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade the Notes during the period described above should consult their own advisors. |
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 issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by contacting (i) BofA Securities, Inc. toll free at 1-800-294-1322, (ii) Citigroup Global Markets Inc. toll free at 1-800-831-9146 or (iii) MUFG Securities Americas Inc. toll free at 1-877-649-6848.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers or other notices were automatically generated as a result of this communication being sent via Bloomberg or another email system.
Sch. A-3
SCHEDULE B
| Underwriters |
Principal Amount of 2.169% Notes due 2023 |
|||
| BofA Securities, Inc. |
$ | 333,334,000 | ||
| Citigroup Global Markets Inc. |
333,333,000 | |||
| MUFG Securities Americas Inc. |
333,333,000 | |||
| BNP Paribas Securities Corp. |
110,000,000 | |||
| Credit Suisse Securities (USA) LLC |
110,000,000 | |||
| Goldman Sachs & Co. LLC |
110,000,000 | |||
| J.P. Morgan Securities LLC |
110,000,000 | |||
| Mizuho Securities USA LLC |
110,000,000 | |||
| SMBC Nikko Securities America, Inc. |
110,000,000 | |||
| HSBC Securities (USA) Inc. |
52,000,000 | |||
| Santander Investment Securities Inc. |
52,000,000 | |||
| SG Americas Securities, LLC |
52,000,000 | |||
| TD Securities (USA) LLC |
52,000,000 | |||
| ABN AMRO Securities (USA) LLC |
25,500,000 | |||
| Scotia Capital (USA) Inc. |
25,500,000 | |||
| Standard Chartered Bank |
25,500,000 | |||
| U.S. Bancorp Investments, Inc. |
25,500,000 | |||
| Citizens Capital Markets, Inc. |
10,000,000 | |||
| Loop Capital Markets LLC |
10,000,000 | |||
| Siebert Williams Shank |
10,000,000 | |||
|
|
|
|||
| Total |
$ | 2,000,000,000 | ||
|
|
|
|||
Exhibit 4.2
EXECUTION VERSION
DUPONT DE NEMOURS, INC.
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of May 1, 2020
to
INDENTURE
Dated as of November 28, 2018
2.169% Notes due 2023
TABLE OF CONTENTS
| Page | ||||
| ARTICLE I |
| |||
| Definitions |
| |||
| SECTION 1.01. Definition of Terms |
2 | |||
| ARTICLE II |
| |||
| General Terms of the Notes |
| |||
| SECTION 2.01. Designation and Principal Amount |
7 | |||
| SECTION 2.02. Further Issues |
8 | |||
| SECTION 2.03. Maturity |
8 | |||
| SECTION 2.04. Interest |
8 | |||
| SECTION 2.05. Global Securities |
8 | |||
| SECTION 2.06. Form of Notes; Denomination |
8 | |||
| SECTION 2.07. Depositary |
8 | |||
| ARTICLE III |
| |||
| Optional Redemption |
| |||
| SECTION 3.01. Optional Redemption |
9 | |||
| SECTION 3.02. Applicability of Certain Redemption Provisions in Indenture |
9 | |||
| ARTICLE IV |
| |||
| Special Mandatory Redemption |
| |||
| SECTION 4.01. Special Mandatory Redemption |
9 | |||
| ARTICLE V |
| |||
| Change of Control |
| |||
| SECTION 5.01. Change of Control |
9 | |||
| ARTICLE VI |
| |||
| Covenants |
| |||
| SECTION 6.01. Limitation on Liens |
11 | |||
| SECTION 6.02. Sale and Leaseback Transactions |
12 | |||
| SECTION 6.03. Merger, Consolidation or Sale of Assets |
13 | |||
| ARTICLE VII |
| |||
| Events of Default |
| |||
| SECTION 7.01. Events of Default |
13 | |||
| ARTICLE VIII |
| |||
| Amendment, Supplement and Waiver |
| |||
| SECTION 8.01. Without the Consent of Holders |
13 | |||
| SECTION 8.02. With the Consent of Holders |
14 | |||
| ARTICLE IX |
| |||
| Satisfaction and Discharge; Defeasance |
| |||
| SECTION 9.01. Satisfaction and Discharge of Indenture |
16 | |||
| SECTION 9.02. Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations |
16 | |||
| ARTICLE X |
| |||
| Miscellaneous |
| |||
| SECTION 10.01. Ratification of Base Indenture |
17 | |||
| SECTION 10.02. Trust Indenture Act Controls |
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| SECTION 10.03. Effects of Headings and Table of Contents |
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| SECTION 10.04. Successors and Assigns |
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| SECTION 10.05. Separability Clause |
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| SECTION 10.06. Benefits of the Second Supplemental Indenture |
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| SECTION 10.07. Counterpart Originals |
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| SECTION 10.08. Governing Law; Waiver of Jury Trial |
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| SECTION 10.09. Force Majeure |
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| SECTION 10.10. U.S.A. Patriot Act |
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| SECTION 10.11. Trustee |
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EXHIBIT A Form of 2023 Notes
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SECOND SUPPLEMENTAL INDENTURE, dated as of May 1, 2020 (this “Second Supplemental Indenture”), between DUPONT DE NEMOURS, INC., a Delaware corporation (the “Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”), under the Base Indenture (as defined below).
RECITALS
WHEREAS the Company (then named DowDuPont Inc.) executed and delivered the indenture, dated as of November 28, 2018, between the Company and the Trustee (the “Base Indenture” and, as supplemented by the Second Supplemental Indenture, the “Indenture”) to provide for the issuance from time to time of its debt securities (the “Securities”), to be issued in one or more series;
WHEREAS pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of new series of Securities under the Base Indenture to be known as its “2.169% Notes due 2023” (the “Notes”), the form and substance of such series and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Second Supplemental Indenture;
WHEREAS the Board of Directors of the Company, pursuant to the resolutions duly adopted on April 26, 2020, has duly authorized the issuance of the Notes, and has authorized the proper officers of the Company to execute any and all appropriate documents necessary or appropriate to effect such issuance;
WHEREAS this Second Supplemental Indenture is being entered into pursuant to the provisions of Sections 3.01 and 14.01 of the Base Indenture;
WHEREAS the Company has requested that the Trustee execute and deliver this Second Supplemental Indenture;
AND WHEREAS all acts and things necessary to make this Second Supplemental Indenture a valid agreement according to its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been done and performed, and the execution of this Second Supplemental Indenture and the issue hereunder of the Notes has been duly authorized in all respects;
NOW THEREFORE, in consideration of the premises and the purchase of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Base Indenture, the forms and terms of the Notes, the Company covenants and agrees with the Trustee, as follows:
ARTICLE I
Definitions
For all purposes of this Second Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b) each term defined in the Base Indenture has the same meaning when used in this Second Supplemental Indenture; provided, however, that if a term is defined both herein and in the Base Indenture, the definition in the Second Supplemental Indenture shall govern with respect the Notes;
(c) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision; and
(d) references to “Article” or “Section” or other subdivisions herein are references to an Article, Section or other subdivisions of this Second Supplemental Indenture.
SECTION 1.01. Definition of Terms. Unless the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Second Supplemental Indenture have the meanings hereinafter set forth:
Attributable Debt:
The term “Attributable Debt” means the present value (discounted at the rate of 1% per annum over the weighted average Yield to Maturity of the Outstanding Notes hereunder, such average being weighted by the principal amount of the Notes) of the obligation of a lessee for rental payments (excluding from such rental payments, however, amounts payable with respect to income and property taxes, insurance, maintenance, and other similar charges and contingent rents, such as those based on sales) during the remaining term of any lease (including any period for which such lease has been extended).
Base Indenture:
The term “Base Indenture” has the meaning specified in the recitals of this Second Supplemental Indenture.
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Below Investment Grade Rating Event:
The term “Below Investment Grade Rating Event” means, with respect to the Notes, that the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred with respect to a particular Change of Control (and thus shall not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event hereunder) if the Rating Agency or Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Below Investment Grade Rating Event).
Business Day:
The term “Business Day” means any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or required by law or regulation to close in the City of New York.
Change of Control:
The term “Change of Control” means the occurrence of any of the following:
(i) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its subsidiaries taken as a whole to any Person or Group other than the Company or one of its subsidiaries;
(ii) the approval by the holders of the Company’s voting stock of any plan or proposal for the liquidation or dissolution of the Company (whether or not otherwise in compliance with the provisions of the Indenture); or
(iii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any Person or Group becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding voting interests in the Company’s capital stock.
For the avoidance of doubt, the transfers of assets and liabilities in connection with the N&B Merger will not constitute a Change of Control.
Change of Control Offer:
The term “Change of Control Offer” has the meaning specified in Section 5.01(a) of this Second Supplemental Indenture.
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Change of Control Payment:
The term “Change of Control Payment” has the meaning specified in Section 5.01(a) of this Second Supplemental Indenture.
Change of Control Payment Date:
The term “Change of Control Payment Date” has the meaning specified in Section 5.01(b) of this Second Supplemental Indenture.
Change of Control Triggering Event:
The term “Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
Consolidated Net Tangible Assets:
The term “Consolidated Net Tangible Assets” means the total amount of assets less applicable reserves and other properly deductible items after deducting (a) all current liabilities excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed, and (b) all goodwill, trade names, trademarks, patents, purchased technology, unamortized debt discount and other intangible assets, all as set forth on the Company’s most recent quarterly balance sheet and computed in accordance with GAAP.
Debt:
The term “Debt” has the meaning specified in Section 6.01(a) of this Second Supplemental Indenture.
Discharged:
The term “Discharged” has the meaning specified in Section 9.02 of this Second Supplemental Indenture.
Event of Default:
The term “Event of Default” has the meaning specified in Section 7.01 of this Second Supplemental Indenture.
Exchange Act:
The term “Exchange Act” has the meaning specified in Section 5.01(e) of this Second Supplemental Indenture.
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Fitch:
The term “Fitch” means Fitch Ratings Ltd. and any successor to its rating agency business.
Group:
The term “Group” means a group of related persons for purposes of Section 13(d) of the Exchange Act.
IFF
The term “IFF” means International Flavors & Fragrances Inc.
Indenture:
The term “Indenture” has the meaning specified in the recitals of this Second Supplemental Indenture.
Investment Grade Rating:
The term “Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P and an equivalent rating of any replacement agency, respectively.
Issue Date:
The term “Issue Date” means May 1, 2020.
Moody’s:
The term “Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
Mortgages:
The term “Mortgages” has the meaning specified in Section 6.01(a) of this Second Supplemental Indenture.
N&B Inc.
The term “N&B Inc.” means Nutrition & Biosciences, Inc., a wholly owned subsidiary of the Company as of the Issue Date.
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N&B Merger:
The term “N&B Merger” means the merger of Neptune Merger Sub I Inc. (a wholly-owned subsidiary of IFF) with and into N&B Inc., with N&B Inc. as the surviving corporation.
Notes:
The term “Notes” has the meaning specified in the recitals of this Second Supplemental Indenture.
Paying Agent:
The term “Paying Agent” means Trustee or any other Person authorized by the Company to pay the principal of or interest on the Notes on behalf of the Company.
Person:
The term “Person” means any individual, corporation, limited liability company, partnership, association, joint stock company, trust, unincorporated organization or government or agency or political subdivision thereof or other entity.
Principal Property:
The term “Principal Property” means any manufacturing plant or facility, distribution facility or any mineral producing property or any research facility located within the continental United States owned by the Company or any Restricted Subsidiary, unless, in the opinion of the Board of Directors, such plant, facility, property or research facility is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries.
Rating Agencies:
The term “Rating Agencies” means:
(i) each of Fitch, Moody’s and S&P; and
(ii) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a credit rating agency registered as a “nationally recognized statistical rating organization” with the SEC, selected by the Company (as certified by a resolution of the Board of Directors) as a replacement agency for Fitch, Moody’s or S&P, or all of them, as the case may be.
Restricted Subsidiary:
The term “Restricted Subsidiary” means any wholly-owned subsidiary (i) substantially all the property of which is located within the continental United States of America; (ii) which owns a Principal Property; and (iii) in which the Company’s investment exceeds 1% of its total consolidated assets as of the end of the preceding year. The term “Restricted Subsidiary” does not include any wholly-owned subsidiary which is principally engaged in leasing or in financing installment receivables or which is principally engaged in financing the Company’s operations outside the continental United States.
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S&P:
The term “S&P” means S&P Global Ratings and any successor to its rating agency business.
SEC:
The term “SEC” means the U.S. Securities and Exchange Commission.
Securities:
The term “Securities” has the meaning specified in the recitals of this Second Supplemental Indenture.
Special Mandatory Redemption Date:
The term “Special Mandatory Redemption Date” has the meaning specified in Section 4.01(a) of this Second Supplemental Indenture.
Special Mandatory Redemption Price:
The term “Special Mandatory Redemption Price” has the meaning specified in Section 4.01(b) of this Second Supplemental Indenture.
Yield to Maturity:
The term “Yield to Maturity” means the yield to maturity, calculated at the time of issuance of the Notes, calculated in accordance with accepted financial practice.
ARTICLE II
General Terms of the Notes
SECTION 2.01. Designation and Principal Amount.
(a) There is hereby authorized and established one new series of Securities under the Base Indenture, designated as the “2.169% Notes due 2023”, which is not limited in aggregate principal amount.
(b) There is initially to be authenticated and delivered (i) $2,000,000,000 aggregate principal amount of the Notes.
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SECTION 2.02. Further Issues. Notwithstanding the initial aggregate principal amounts set forth in Section 2.01(b) of this Second Supplemental Indenture, the Company may from time to time, without the consent of the Holders of the Notes, issue additional notes having the same ranking and the same interest rate, maturity and other terms as the Notes, except for the issue date, issue price and initial Interest Payment Date. Any additional notes having such similar terms, together with the Notes, will constitute a single series of Securities under the Indenture; provided, however, that, in the event that additional notes are not fungible with the Notes for U.S. federal income tax purposes, the Company shall cause such additional notes to be issued with a separate CUSIP number. No additional notes may be issued if an Event of Default has occurred and is continuing with respect to the Notes.
SECTION 2.03. Maturity. The Notes will mature on May 1, 2023.
SECTION 2.04. Interest. The Notes will bear interest (computed on the basis of a 360-day year consisting of twelve 30-day months) from the Issue Date at the rate of 2.169% per annum, payable semiannually in arrears; interest payable on each Interest Payment Date will include interest accrued from the Issue Date, or from the most recent Interest Payment Date to which interest has been paid or duly provided for; the Interest Payment Dates on which such interest shall be payable are May 1 and November 1, commencing on November 1, 2020. The Record Date for the interest payable on any Interest Payment Date is the close of business on April 15 or October 15, as the case may be, immediately preceding the relevant Interest Payment Date, whether or not that day is a Business Day. If any Interest Payment Date falls on a day that is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date. If the maturity date of the Notes falls on a date that is not a Business Day, the payment of interest and principal of the Notes may be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after the maturity date.
SECTION 2.05. Global Securities. The Notes will be issued in the form of one or more permanent Global Securities in definitive, fully registered form.
SECTION 2.06. Form of Notes; Denomination. The Notes and the Trustee’s certificate of authentication to be endorsed thereon are to be substantially in the form set forth in Exhibit A hereto. The Notes shall be issued and may be transferred only in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.07. Depositary. The Depository Trust Company, a New York corporation, will initially act as Depositary with respect to the Notes.
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ARTICLE III
Optional Redemption
SECTION 3.01. Optional Redemption. The Notes shall be redeemable at the option of the Company as set forth under the heading “Optional Redemption” in the form of security set forth in Exhibit A hereto.
SECTION 3.02. Applicability of Certain Redemption Provisions in Indenture. The provisions of Article IV of the Base Indenture shall be applicable to any redemption of Notes pursuant to this Article III.
ARTICLE IV
Special Mandatory Redemption
SECTION 4.01. Special Mandatory Redemption. (a) If the N&B Merger is consummated, on the date that is the later of (i) three (3) Business Days after the consummation of the N&B Merger and (ii) one (1) year from the Issue Date, the Company shall cause a notice to be delivered electronically or mailed, with a copy to the Trustee, to each Holder at its registered address, setting forth the date of redemption of all of the Notes (the “Special Mandatory Redemption Date”).
(b) On the Special Mandatory Redemption Date, the Company shall redeem all of the Notes at a redemption price equal to 100% of the aggregate principal amount of the Notes plus accrued and unpaid interest, if any, to but excluding the Special Mandatory Redemption Date (the “Special Mandatory Redemption Price”).
(c) If funds sufficient to pay the Special Mandatory Redemption Price of all Notes to be redeemed on the Special Mandatory Redemption Date are deposited with the Paying Agent on or before the Special Mandatory Redemption Date, the Notes will cease to bear interest on and after the Special Mandatory Redemption Date.
ARTICLE V
Change of Control
SECTION 5.01. Change of Control. (a) If a Change of Control Triggering Event occurs with respect to the Notes, unless the Company has exercised its option to redeem the Notes in accordance with Section 3.01 of this Second Supplemental Indenture or has issued a Special Mandatory Redemption Notice in respect of the Notes in accordance with Section 4.01 of this Second Supplemental Indenture, the Holders of the Notes will have the right to require the Company to repurchase all or any part (equal to $2,000 and additional multiples of $1,000) of their Notes pursuant to an offer described below (the “Change of Control Offer”). In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but excluding, the date of purchase (the “Change of Control Payment”).
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(b) Within 30 days following any Change of Control Triggering Event, the Company shall mail a notice to the Holders of the Notes and the Trustee describing the transaction or transactions that constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”), pursuant to the procedures required herein and described in such notice.
(c) On the Change of Control Payment Date, the Company shall, to the extent lawful: (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; (ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased.
(d) The Paying Agent shall promptly pay to each Holder of Notes properly tendered the purchase price for the Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note shall be in a principal amount of $2,000 and additional multiples of $1,000.
(e) The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with this Section 5.01, the Company shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 5.01 by virtue of such conflicts.
(f) The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by it, and such third party purchases all Notes properly tendered and not withdrawn under its offer.
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ARTICLE VI
Covenants
SECTION 6.01. Limitation on Liens. (a) The Company shall not, nor shall the Company permit any Restricted Subsidiary to, issue, assume or guarantee any debt for money borrowed (“Debt”) secured by a mortgage, security interest, pledge, lien or other encumbrance (mortgages, security interests, pledges, liens and other encumbrances being hereinafter called “Mortgages”) on any Principal Property or on any shares of stock or indebtedness of any Restricted Subsidiary (whether such Principal Property, shares of stock or indebtedness are now owned or hereafter acquired) without in any such case effectively providing concurrently with the issuance, assumption or guaranty of any such Debt that the Notes (together with, if the Company shall so determine, any other indebtedness of or guaranty by the Company or such Restricted Subsidiary ranking equally with the Notes and then existing or thereafter created) shall be secured equally and ratably with such Debt; provided, however, that the foregoing restrictions shall not apply to Debt secured by:
(i) Mortgages on property, shares of stock or indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary;
(ii) Mortgages on property existing at the time of acquisition of such property by the Company or a Restricted Subsidiary, or Mortgages to secure the payment of all or any part of the purchase price of such property upon the acquisition of such property by the Company or a Restricted Subsidiary or to secure any Debt incurred by the Company or a Restricted Subsidiary prior to, at the time of, or within one year after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operation of such property, which Debt is incurred for the purpose of financing all or any part of the purchase price thereof or construction or improvements thereon; provided, however, that in the case of any such acquisition, construction or improvement the Mortgage shall not apply to any property theretofore owned by the Company or a Restricted Subsidiary, other than, in the case of any such construction or improvement, any theretofore unimproved real property on which the property so constructed, or the improvement, is located;
(iii) Mortgages securing Debt owing by any Restricted Subsidiary to the Company or another Restricted Subsidiary;
(iv) Mortgages on property of a Person existing at the time that Person is merged into or consolidated with the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary;
(v) Mortgages on property of the Company or a Restricted Subsidiary in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such Mortgages (including without limitation Mortgages incurred in connection with pollution control, industrial revenue or similar financings);
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(vi) Mortgages existing on the date of the Base Indenture; or
(vii) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Mortgage referred to in the foregoing clauses (i) to (vi); provided, however, that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the Mortgage so extended, renewed or replaced (plus improvements on such property).
(b) Notwithstanding Section 6.01(a) above, the Company and one or more of its Restricted Subsidiaries may, without securing the Notes, issue, assume, or guarantee Debt secured by Mortgages which would otherwise be subject to the restrictions set forth in Section 6.01(a) above; provided that the aggregate amount of Debt incurred under this Section 6.01(b) that would then be outstanding after giving pro forma effect to any such incurrence (including the pro forma application of the proceeds of such Debt incurred), together with the aggregate amount of the then outstanding Attributable Debt incurred under Section 6.02(a) of this Second Supplemental Indenture, does not exceed 10% of the Consolidated Net Tangible Assets of the Company and its consolidated Subsidiaries.
SECTION 6.02. Sale and Leaseback Transactions. The Company shall not, nor shall it permit any Restricted Subsidiary to, enter into any arrangement with any person providing for the leasing by the Company or any Restricted Subsidiary of any Principal Property of the Company or any Restricted Subsidiary (whether such Principal Property is now owned or hereafter acquired) (except for temporary leases for a term of not more than three years and except for leases between the Company and a Restricted Subsidiary or between Restricted Subsidiaries), which property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such person, unless (a) the Company or such Restricted Subsidiary would be entitled, pursuant to Section 6.01 of this Second Supplemental Indenture, to issue, assume or guarantee Debt secured by a Mortgage upon the property involved at least equal in amount to the Attributable Debt for that transaction without equally and ratably securing the Notes or (b) the Company shall apply an amount in cash equal to the Attributable Debt for that transaction to the retirement (other than any mandatory retirement or by way of payment at maturity), within 90 days of the effective date of any such arrangement, of Debt of the Company or any Restricted Subsidiary (other than Debt owed by the Company or any Restricted Subsidiary and other than Debt of the Company which is subordinated to the Notes), which by its terms matures at or is extendible or renewable at the option of the obligor to a date more than twelve months after the date of creation of such Debt.
It is understood that transactions entered into pursuant to Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, are not Debt secured by a Mortgage within the meaning of Section 6.01 or sale and leaseback transactions prohibited by the first paragraph of this Section 6.02.
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SECTION 6.03. Merger, Consolidation or Sale of Assets. Section 6.04 of the Base Indenture shall be applicable to the Notes; provided, that, solely with respect to the Notes, Section 6.04(a) of the Base Indenture shall be amended to include the following proviso at the end of such provision:
“provided, that this Section 6.04 shall not apply to transactions effected in connection with the N&B Merger”
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. Section 7.01 of the Base Indenture shall be applicable to the Notes. In addition, the following shall be an “Event of Default” with respect to the Notes:
the failure of the Company to deliver a Special Mandatory Redemption Notice with respect to the Notes in accordance with Section 4.01 of this Second Supplemental Indenture.
ARTICLE VIII
Amendment, Supplement and Waiver
SECTION 8.01. Without the Consent of Holders. This Section 8.01 supersedes and replaces Section 14.01 of the Base Indenture with respect to the Notes, and references to “Section 14.01” of the Base Indenture shall instead refer to this “Section 8.01” of this Second Supplemental Indenture. The terms of the Notes or the terms of the Indenture with respect to the Notes may be amended, supplemented or otherwise modified by the Company and the Trustee, at any time and from time to time, without the consent of any Holder of Outstanding Notes for any of the following purposes:
(a) to add to the covenants and agreements of the Company and to add Events of Default, in each case for the protection or benefit of the Holders of the Notes, or to surrender any right or power conferred upon the Company;
(b) to add to or change any of the provisions of the Indenture to provide, change or eliminate any restrictions on the payment of principal of or premium, if any, on the Notes; provided that any such action shall not adversely affect the interests of the Holders of the Notes in any material respect;
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(c) to evidence the succession of another entity to the Company, or successive successions, and the assumption by such successor of the covenants and obligations of the Company contained in the Notes and in the Indenture in accordance with Section 6.03 of this Second Supplemental Indenture;
(d) to evidence and provide for the acceptance of appointment by a successor Trustee with respect to the Notes and to add to or change any of the provisions of the Indenture as shall be necessary for or facilitate the administration of the trusts under the Indenture by more than one Trustee;
(e) to secure the Notes;
(f) to cure any ambiguity or inconsistency or to correct or supplement any provision in the Indenture or to conform the terms that are applicable to the Notes to the description of the terms of such Notes in the “Description of Notes” section of the Company’s prospectus supplement dated April 28, 2020;
(g) to add to or change or eliminate any provision of the Indenture as shall be necessary or desirable in accordance with the Trust Indenture Act;
(h) to add guarantors or co-obligors with respect to the Notes or to release guarantors from their guarantees of the Notes, in accordance with the terms of the Notes;
(i) to make any change in the Notes that does not adversely affect in any material respect the rights of the Holders of the Notes;
(j) to provide for uncertificated securities in addition to certificated securities; or
(k) to supplement any of the provisions of the Indenture to the extent as shall be necessary to permit or facilitate the defeasance or discharge of the Notes; provided that any such action shall not adversely affect the interests of the Holders of the Notes in any material respect.
SECTION 8.02. With the Consent of Holders.
(a) This Section 8.02 supersedes and replaces Section 14.02 of the Base Indenture with respect to the Notes, and references to “Section 14.02” of the Base Indenture shall instead refer to this “Section 8.02” of this Second Supplemental Indenture. The terms of the Notes or the terms of the Indenture with respect to the Notes may be amended, supplemented or otherwise modified by the Company and the Trustee, at any time and from time to time, with the consent of Holders of a majority in aggregate principal amount of the Outstanding Notes (evidenced as provided in Article VIII of the Base Indenture) for the purpose of adding any provisions to or changing in any manner or eliminating any provisions of the Indenture or of modifying in any manner the rights of the Holders of the Notes; provided that no such amendment, supplement or modification shall, without the consent of the Holder of each Outstanding Note:
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(i) extend the Stated Maturity of the principal of, or any installment of interest on, the Notes, or reduce the principal amount or Redemption Price thereof or the interest thereon or any premium payable thereon, or extend the Stated Maturity of, or change the place of payment where, or the Currency in which the principal of and premium, if any, or interest on the Notes is denominated or payable, change the ranking of such Notes or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or in the case of redemption, on or after the Redemption Date);
(ii) modify any of the provisions of this Section 8.02, Section 6.06 of the Base Indenture or Section 7.06 of the Base Indenture, except to increase any such percentage or to provide that certain other provisions of the Indenture cannot be amended, modified or waived without the consent of the Holder of each Outstanding Note affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 8.02 and Section 6.06 of the Base Indenture, or the deletion of this proviso, in accordance with the requirements of Section 11.06 of the Base Indenture and Section 8.01(d) of this Second Supplemental Indenture.
(iii) amend, waive or otherwise modify the provisions of Article IV with respect to the Notes; or
(iv) modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee.
(b) Any amendment, supplement or waiver that changes or eliminates any provision of the Indenture which has expressly been included solely for the benefit of one or more particular series of Notes or which modifies the rights of the Holders of the Notes with respect to such covenant or other provision, shall be deemed to not affect the rights under the Indenture of the Holders of the Notes of any other series.
(c) It shall not be necessary for the consent of the Holders of the Notes under this Section 8.02 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.
(d) The Company may set a record date for purposes of determining the identity of the Holders of the Notes entitled to give a written consent or waive compliance by the Company as authorized or permitted by this Section 8.02. Such record date shall not be more than 30 days prior to the first solicitation of such consent or waiver or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 312 of the Trust Indenture Act.
(e) Promptly after the execution by the Company and the Trustee of any amendment, supplement or modification pursuant to the provisions of this Section 8.02, the Company shall mail a notice, setting forth in general terms the substance of such amendment, supplement or modification, to the Holders of the Notes at their addresses as the same shall then appear in the Register of the Company. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or modification.
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ARTICLE IX
Satisfaction and Discharge; Defeasance
SECTION 9.01. Satisfaction and Discharge of Indenture. Section 12.02 of the Base Indenture shall be applicable to the Notes; provided, that, solely with respect to the Notes, the last paragraph of Section of 12.02 of the Base Indenture shall be superseded and replaced by the following:
“Notwithstanding the satisfaction and discharge of the Indenture with respect to the Notes, the obligations of the Company to the Trustee under Section 11.01 of the Base Indenture, the provisions of Sections 3.04, 3.05, 3.06, 3.07, 3.10, 6.02 and 6.03 of the Base Indenture, Article XII of the Base Indenture (as amended by Article IX of this Second Supplemental Indenture), and, if the Notes are to be redeemed prior to their Stated Maturity, the provisions of Article IV of the Base Indenture, the provisions of Article III of the Second Supplemental Indenture, and, if money shall have been deposited with the Trustee pursuant Section 12.02(a) of the Base Indenture, the obligations of the Trustee under Section 12.07 of the Base Indenture and Section 6.03(e) of the Base Indenture shall survive such satisfaction and discharge.”
SECTION 9.02. Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations. Section 12.03 of the Base Indenture shall be applicable to the Notes. If the Company exercises its “covenant defeasance” option in accordance with Section 12.03 of the Base Indenture, in addition to any covenants specified therein, the Company shall cease to be under any obligation to comply with the covenants set forth in Section 6.01, Section 6.02 and Section 6.03 of this Second Supplemental Indenture. Solely with respect to the Notes, the definition of “Discharged” set forth in Section 12.03 of the Base Indenture shall be superseded and replaced by the following:
“‘Discharged’ means, with respect to the Notes, that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Notes and to have satisfied all the obligations under the Indenture relating to the Notes (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following, all of which shall survive such Discharge and remain in full force and effect with respect to the Notes: (A) the rights of the Holders of the Notes to receive, from the trust fund described in clause (a) above, payment of the principal of and premium, if any, and interest on such Notes when such payments are due, (B) Sections 3.04, 3.05, 3.06, 3.07, 3.10, 6.02 and 6.03 of the Base
16
Indenture, (C) if the Notes are to be redeemed prior to their Stated Maturity, the provisions of Article III of this Second Supplemental Indenture, (D) the provisions of Article XII of the Base Indenture (as amended by Article IX of this Second Supplemental Indenture) and (E) the rights, powers, trusts, duties and immunities of the Trustee hereunder.”
ARTICLE X
Miscellaneous
SECTION 10.01. Ratification of Base Indenture. The Indenture, as supplemented by this Second Supplemental Indenture, is in all respects ratified and confirmed, and this Second Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided; provided that the provisions of this Second Supplemental Indenture apply solely with respect to the Notes. The rights, privileges, immunities, benefits, protections and indemnities provided to the Trustee under the Base Indenture shall apply to any action or inaction of the Trustee (acting in any capacity hereunder) in connection herewith, including in connection with the execution and delivery of this Second Supplemental Indenture.
SECTION 10.02. Trust Indenture Act Controls. If and to the extent that any provision of this Second Supplemental Indenture limits, qualifies or conflicts with the duties imposed by, or another provision included in the Indenture which is required to be included in the Indenture by any of the provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
SECTION 10.03. Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 10.04. Successors and Assigns. All covenants and agreements in this Second Supplemental Indenture by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
SECTION 10.05. Separability Clause. In case any provision in this Second Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.06. Benefits of the Second Supplemental Indenture. Nothing in this Second Supplemental Indenture expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto and their successors and the Holders of the Notes any benefit or any right, remedy or claim under or by reason of this Second Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Second Supplemental Indenture contained shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the Notes.
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SECTION 10.07. Counterpart Originals. This Second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 10.08. Governing Law; Waiver of Jury Trial. This Second Supplemental Indenture and the Notes shall be deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
EACH PARTY HERETO, AND EACH HOLDER OF A NOTE BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECOND SUPPLEMENTAL INDENTURE.
SECTION 10.09. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 10.10. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Second Supplemental Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
SECTION 10.11. Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Second Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the rights, protections and indemnities afforded the Trustee (acting in any capacity thereunder or hereunder) shall apply to any action or inaction of the Trustee hereunder or in connection with the transactions contemplated hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the day and year first above written.
| DUPONT DE NEMOURS, INC. | ||
| By: | /s/ Lori Koch | |
| Name: Lori Koch Title: Chief Financial Officer | ||
| U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE | ||
| By: | /s/ Annette M. Marsula | |
| Name: Annette M. Marsula Title: Vice President | ||
[Signature Page to Second Supplemental Indenture]
EXHIBIT A
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
A-1
CUSIP No. 26614N AA0
ISIN No. US26614NAA00
DUPONT DE NEMOURS, INC.
2.169% NOTES DUE 2023
| No.________ |
$__________ | |
| As revised by the Schedule of Increases or Decreases in Global Security attached hereto | ||
Interest. DuPont de Nemours, Inc., a Delaware corporation (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO. or registered assigns, the principal sum of ___ million dollars ($________), as revised by the Schedule of Increases or Decreases in Global Security attached hereto, on May 1, 2023 and to pay interest thereon from May 1, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on May 1 and November 1 in each year, commencing November 1, 2020 at the rate of 2.169% per annum, until the principal hereof is paid or made available for payment. If any Interest Payment Date falls on a day that is not a Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date. If the maturity date of the Notes falls on a date that is not a Business Day, the payment of interest and principal of the Notes may be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after the maturity date.
Method of Payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be April 15 or October 15, as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice thereof having been given to Holders of Securities not less than 10 days prior to such Special Record Date, all as more fully provided in said Indenture. Payment of the principal of (and premium, if any) and any such interest on this Security will be made at the Corporate Trust Office in U.S. Dollars.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
A-2
Authentication. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
Dated:
| DuPont de Nemours, Inc. | ||
| By: |
| |
| Name: _______ | ||
| Title: _______ | ||
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Date of authentication: | U.S. Bank National Association, as Trustee | |||||
| By: |
| |||||
| Authorized Signatory | ||||||
A-4
[FORM OF REVERSE OF SECURITY]
Indenture. This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of November 28, 2018 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture dated May 1, 2020 (as so supplemented, herein called the “Indenture”), between the Company and U.S. Bank National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities of this series and of the terms upon which the Securities of this series are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $2,000,000,000.
Optional Redemption. The Securities of this series are subject to redemption at the Company’s option, at any time and from time to time, in whole or in part, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Securities of this series to be redeemed or (ii) as determined by the Company, the sum of the present values of the remaining scheduled payments of principal and interest hereon from the Redemption Date to the maturity date (exclusive of any accrued interest) discounted to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points, plus, in each case, any interest accrued but not paid to, but excluding, the Redemption Date.
For purposes of determining the optional redemption price, the following definitions are applicable:
“Treasury Rate” means, with respect to any Redemption Date for the Securities of this series, (1) the yield, which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated ‘‘H.15’’ or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity, for the maturity corresponding to the Comparable Treasury Issue (or if no maturity is within three months before or after the maturity date, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounded to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities of this series to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Securities of this series.
A-5
“Comparable Treasury Price” means, with respect to any Redemption Date for the Securities of this series, (i) the average of four Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.
“Reference Treasury Dealer” means each of BofA Securities, Inc. and Citigroup Global Markets Inc. or their respective affiliates, and two other primary U.S. Government securities dealers in New York City appointed by the Company (each, a “Primary Treasury Dealer”); provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by that Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third Business Day preceding that Redemption Date.
Notice of any optional redemption will be mailed at least 10 days but not more than 60 days before the Redemption Date (unless a shorter period shall be satisfactory to the Trustee) to each registered Holder of the Securities of this series to be redeemed. Unless the Company defaults in payment of the redemption price, on and after the Redemption Date, interest will cease to accrue on the Securities of this series or portions of the Securities of this series called for redemption, unless subject to a condition precedent that has not been satisfied. If fewer than all of the Securities of this series are to be redeemed, the Trustee will select the particular Securities or portions thereof for redemption from the Outstanding Securities of this series not previously called by such method as the Trustee deems fair and appropriate. If such redemption is subject to a condition precedent that has not been satisfied, the Company shall provide written notice to the Trustee prior to the close of business at least two Business Days prior to the Redemption Date (unless a shorter period shall be satisfactory to the Trustee). Upon receipt of such notice, the notice of redemption shall be rescinded and the redemption of the Securities shall not occur.
Except as set forth herein, the Securities will not be redeemable by the Company prior to maturity and will not be entitled to the benefit of any sinking fund.
Special Mandatory Redemption. If a Special Mandatory Redemption Event occurs, the Company shall redeem all of the Securities of this series in accordance with the provisions of Article IV of the Second Supplemental Indenture.
Defaults and Remedies. If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
A-6
Change of Control. If a Change of Control Triggering Event occurs with respect to the Securities of this series, unless the Company has exercised its option to redeem the Securities of this series in accordance with the provisions set forth in this Security under the heading “Optional Redemption” or has issued a Special Mandatory Redemption Notice in respect of the Securities of this series in accordance with Section 4.01 of the Second Supplemental Indenture, Holders of the Securities of this series will have the right to require the Company to repurchase all or any part (equal to $2,000 and additional multiples of $1,000) of their Securities as set forth in Article V of the Second Supplemental Indenture.
Amendment, Modification and Waiver. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding to be affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
Restrictive Covenants. The restrictive covenants for this Security are as specified in the Indenture. The Indenture does not limit unsecured debt of the Company or any of its Subsidiaries. Section 5.01 (Change of Control) of the Second Supplemental Indenture and Section 6.04 (Merger, Consolidation and Sale of Assets) of the Base Indenture (as amended by Section 6.03 of the Second Supplemental Indenture) shall not apply to transactions effected in connection with the N&B Merger.
Denominations, Transfer and Exchange. The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and in integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the Registrar accompanied by a written request for transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
A-7
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Persons Deemed Owners. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Miscellaneous. The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of law rules of said State.
All terms used in this Security and not defined herein shall have the meanings assigned to them in the Indenture.
A-8
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
| Date of Exchange |
Amount of increase in |
Amount of decrease in |
Principal Amount of this |
Signature of authorized |
A-9
Exhibit 5.1
May 1, 2020
DuPont de Nemours, Inc.
974 Centre Road
Wilmington, Delaware 19805
Ladies and Gentlemen:
I have acted as counsel for DuPont de Nemours, Inc., a Delaware corporation (the “Company”), in connection with the public offering of $2,000,000,000 aggregate principal amount of the Company’s 2.169% Notes due 2023 (the “Notes”).
In furnishing this opinion, I or a member of my staff have examined and relied upon copies of the Registration Statement on Form S-3 (the “Registration Statement”) filed by the Company on September 5, 2018 with the Securities and Exchange Commission, including the information deemed to be a part of the Registration Statement pursuant to Rule 430B of the General Rules and Regulations under the Securities Act of 1933, as amended, the Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company, as amended to date, the Indenture, dated as of November 28, 2018, between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture dated as of May 1, 2020, between the Company and the Trustee, corporate records of the Company (including certain resolutions of the Board of Directors of the Company (the “Board of Directors”), certain resolutions of the Pricing Committee of the Board of Directors (the “Pricing Committee”), a written consent of a Pricing Officer of the Pricing Committee and minute books of the Company), certificates of public officials and of representatives of the Company, statutes and other instruments and documents as we have deemed necessary or appropriate to form a basis for the opinion hereinafter expressed.
In connection with this opinion, I have assumed the genuineness of all signatures on all documents examined by me and the authenticity of all documents submitted to me as originals and the conformity to the originals of all documents submitted to me as copies.
Based on the foregoing and subject to the assumptions, limitations and qualifications set forth herein, I am of the opinion that the Notes have been duly authorized, executed and delivered by the Company and are legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
The opinion set forth above is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
I hereby consent to use of this opinion as an exhibit of the Company’s Current Report on Form 8-K being filed on the date hereof and further consent to the reference to my name under the caption “Legal Matters” in the prospectus supplement, which is a part of the Registration Statement.
| Very truly yours, |
| /s/ Erik T. Hoover |
| Erik T. Hoover |
| Senior Vice President and General Counsel |