Voya Financial, Inc 8-K, filed Sep 20, 2024
Voya Financial, Inc. (VOYA)
About this 8-K
Voya Financial, Inc filed this 8-K on September 20, 2024.
Items reported
- Item 1.01: Entered into a material agreement
- Item 2.03: New debt or off-balance-sheet obligation
- 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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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Securities registered pursuant to Section 12(b) of the Act:
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interest in a share of 5.35% Fixed-Rate Non-Cumulative Preferred Stock, Series B, $0.01 par value |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On September 20, 2024, Voya Financial, Inc. (“Voya”) completed its registered public offering (the “Offering”) of $400 million aggregate principal amount of 5.000% Senior Notes due 2034 (the “Notes”). The Notes are senior unsecured obligations of Voya and are fully, irrevocably and unconditionally guaranteed (the “Guarantee”) by Voya Holdings Inc., a wholly-owned subsidiary of Voya (“Voya Holdings”). The Offering resulted in aggregate net proceeds to Voya of approximately $396.0 million, after deducting commissions and estimated expenses. As previously announced, Voya intends to use all of the net proceeds of the Offering for general corporate purposes, which may include repayment at maturity of the $400 million outstanding principal amount of its 3.976% Senior Notes due February 15, 2025.
The Notes and Guarantee were issued pursuant to the Indenture dated as of July 13, 2012 (the “Base Indenture”), as supplemented by an Eighth Supplemental Indenture dated as of September 20, 2024 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), each among Voya, Voya Holdings and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). The Notes and Guarantee were offered and sold pursuant to the prospectus supplement dated September 13, 2024, to the prospectus dated November 15, 2022, each filed with the Securities and Exchange Commission (the “Commission”) as part of the Registration Statement on Form S-3 of Voya and Voya Holdings (Nos. 333-262924 and 333-262924-01) (the “Registration Statement”).
Voya will pay interest on the Notes on March 20 and September 20 of each year, beginning on March 20, 2025. The Notes will mature on September 20, 2034 and bear interest at a rate of 5.000% per annum. Voya may, at its option, redeem, in whole or in part, the Notes at any time and from time to time at the redemption prices described in the Supplemental Indenture. The Indenture limits Voya’s ability to create liens, dispose of stock of certain subsidiaries and merge, consolidate or sell assets. The Indenture also provides for customary events of default.
The foregoing descriptions of the Notes, Guarantee and related agreements are only a summary of certain provisions and are qualified in their entirety by the terms of the Base Indenture, as filed with the Commission and incorporated by reference as an exhibit to the Registration Statement, the Supplemental Indenture and the form of Notes, copies of which are attached hereto as Exhibits 4.1 and 4.2, respectively, and are expressly incorporated by reference herein and into the Registration Statement.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant.
The disclosure under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
On September 20, 2024, Voya issued the Notes, as guaranteed by Voya Holdings. Exhibits are filed herewith in connection with the Registration Statement. The following documents are being filed with this Current Report on Form 8-K: (i) Underwriting Agreement, dated September 13, 2024, among Voya Financial, Inc., Voya Holdings, Inc. and BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives of the underwriters listed on Schedule I thereto; (ii) Supplemental Indenture; (iii) Form of Notes; and (iv) opinions of Faegre Drinker Biddle & Reath LLP and Day Pitney LLP regarding the Notes and the related Guarantee.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| 5.1 | Opinion of Faegre Drinker Biddle & Reath LLP | |
| 5.2 | Opinion of Day Pitney LLP | |
| 23.1 | Consent of Faegre Drinker Biddle & Reath LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Day Pitney LLP (included in Exhibit 5.2) | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| VOYA FINANCIAL, INC. | ||||||
| Date: September 20, 2024 | By: | /S/ My Chi To | ||||
| Name: | My Chi To | |||||
| Title: | Executive Vice President, Chief Legal Officer and Corporate Secretary | |||||
Exhibit 1.1
Execution Version
VOYA FINANCIAL, INC.
$400,000,000 5.000% Senior Notes due 2034
Guaranteed by
Voya Holdings Inc.
UNDERWRITING AGREEMENT
September 13, 2024
BofA Securities, Inc.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
As Representatives of the several
Underwriters named in Schedule I attached hereto,
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Voya Financial, Inc., a Delaware corporation (the “Company”), proposes, upon the terms and conditions set forth in this agreement (this “Agreement”), to issue and sell to the several Underwriters named in Schedule I hereto (the “Underwriters”), for whom BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC are acting as representatives (in such capacity , the “Representatives”), an aggregate of $400,000,000 principal amount of its 5.000% Senior Notes due 2034 (the “Securities”). The Securities will (i) have terms and provisions that are summarized in the Time of Sale Prospectus and Basic Prospectus (each as defined below), and (ii) are to be issued pursuant to an Indenture (the “Base Indenture”) dated as of July 13, 2012 among the Company, Voya Holdings Inc., a Connecticut corporation
(the “Guarantor”), and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the Eighth Supplemental Indenture, to be dated as of September 20, 2024 (the “Supplemental Indenture,” and together with the Base Indenture, the “Indenture”) and will be guaranteed on an unsecured, senior basis (the “Guarantees”) by the Guarantor. As used herein, the term “Securities” shall include the Guarantees, unless the context otherwise requires.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement, including a prospectus, on Form S-3, relating to securities of the Company (the “Shelf Securities”), which registration statement was declared effective not earlier than three years prior to the date hereof. The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.” The registration statement as amended at the date of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf Securities dated November 15, 2022 in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement dated September 13, 2024 specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus”; the term “preliminary prospectus” means any preliminary form of the Prospectus.
For purposes of this Agreement “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the Basic Prospectus, as supplemented by the preliminary prospectus supplement specifically relating to the Securities dated September 13, 2024, together with the documents and pricing information set forth in Schedule II hereto, and “electronic road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company and the Guarantor. The Company and the Guarantor jointly and severally represent and warrant to and agree with each of the Underwriters that:
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(a) (i) At the date hereof, the Company is a “well-known seasoned issuer”, as defined in Rule 405 under the Securities Act, (ii) at the earliest time after the filing of the Original Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer”, as defined in Rule 405 under the Securities Act, and (iii) the Original Registration Statement was declared effective by the Commission on November 15, 2022. No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or, to the Company’s knowledge, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and, each such part, as amended or supplemented, if applicable, when such amendment or supplement becomes effective, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each electronic road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vii) the Prospectus does not contain as of the date of the prospectus supplement forming a part thereof and, as amended or supplemented, if applicable, as of the date of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(c) Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and
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regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule II hereto, forming part of the Time of Sale Prospectus, and electronic road shows, if any, each furnished to you before first use, neither, the Company or the Guarantor has prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company and each of its significant subsidiaries (as defined below) have been duly organized and are validly existing and in good standing (to the extent that such concept is applicable) under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing (to the extent that such concept is applicable) in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the business, assets, financial position, shareholder’s equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company and the Guarantor of their respective obligations under this Agreement, the Securities and the Guarantees (a “Material Adverse Effect”). For purposes of this Agreement, “significant subsidiary” means the subsidiaries listed in Schedule III to this Agreement.
(e) Each subsidiary that is required to be organized and licensed as an insurance company (each, an “Insurance Subsidiary,” and collectively the “Insurance Subsidiaries”) is duly organized and licensed as an insurance company in the jurisdiction in which it is chartered or organized and is duly licensed or authorized as an insurer in each other jurisdiction where it is required to be so licensed or authorized to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, except in each case where the failure to be so organized, licensed or authorized would not reasonably be expected to have a Material Adverse Effect; each of the Company and each Insurance Subsidiary has made all required filings under applicable insurance company statutes and has filed all notices, reports, documents or other information required to be filed thereunder, except in each case where the failure to do so would not reasonably be expected to have a Material Adverse Effect; each of the Company and each Insurance Subsidiary has all other necessary authorizations, approvals, orders, consents, licenses, certificates, permits, registrations and qualifications, of and from all insurance regulatory authorities necessary to conduct their respective existing businesses as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, except where the failure to have such authorizations, approvals, orders, consents, licenses, certificates, permits, registrations or qualifications (individually or in the aggregate) would not reasonably be expected to have a Material Adverse Effect, except as set forth in or contemplated in the Time of Sale Prospectus and the Prospectus; none of the Company or any Insurance Subsidiary has received any
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notification from any insurance regulatory authority to the effect that any additional authorization, approval, order, consent, license, certificate, permit, registration or qualification from any insurance regulatory authority is needed to be obtained by any of the Company or any Insurance Subsidiary other than in any case where the failure to acquire such additional authorization, approval, order, consent, license, certificate, permit, registration or qualification (individually or in the aggregate) would not reasonably be expected to have a Material Adverse Effect; except as set forth in the Time of Sale Prospectus and the Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any law, rule, regulation, agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company as would reasonably be expected to have a Material Adverse Effect; and except as set forth in the Time of Sale Prospectus and the Prospectus, no insurance regulatory authority having jurisdiction over any Insurance Subsidiary has issued any order or decree impairing, restricting or prohibiting (A) the payment of dividends by any Insurance Subsidiary to its parent or the payment of dividends by such parent to the Company (directly or indirectly through one or more intermediate holding companies directly or indirectly wholly owned by the Company), or (B) the continuation of the business of the Company or any of the Insurance Subsidiaries in all material respects as presently conducted.
(f) All the outstanding shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares) and are owned directly or indirectly by the Company, free and clear of any material lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party.
(g) The Company and the Guarantor have full right, power and authority to execute and deliver this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been or will be duly and validly taken.
(h) This Agreement has been duly authorized, executed and delivered by the Company and the Guarantor.
(i) The Indenture has been duly authorized by the Company and the Guarantor, the Base Indenture has been duly executed and delivered by the Company and the Guarantor and, when the Supplemental Indenture is duly executed and delivered in accordance with its terms by each of the parties thereto on or prior to the Closing Date, will constitute a valid and legally binding agreement of the Company and the Guarantor enforceable against the Company and the Guarantor in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
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affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the “Enforceability Exceptions”); and upon effectiveness of the Registration Statement, the Indenture was duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(j) The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by the Guarantor and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(k) The Base Indenture conforms and the Securities and the Supplemental Indenture will conform in all material respects to the description thereof contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(l) (i) Neither the Company nor any of its significant subsidiaries is in violation of its charter or by-laws or similar organizational documents; (ii) neither the Company nor any of its subsidiaries is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject; and (iii) neither the Company nor any of its subsidiaries is in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority (including the insurance laws and regulations of the states of incorporation of the Company’s Insurance Subsidiaries and the insurance laws and regulations of other applicable jurisdictions), except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
(m) The execution, delivery and performance by the Company and the Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any
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of its subsidiaries is bound or to which any property or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its significant subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect and would not, individually or in the aggregate, result in any liability for any Underwriter.
(n) No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company and the Guarantor of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities and compliance by the Company and the Guarantor with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for the registration of the Securities under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under applicable state securities or Blue Sky laws of any jurisdiction in which the Securities are offered and sold in connection with the purchase and distribution of the Securities by the Underwriters.
(o) The financial statements (including the related notes and schedules thereto) of the Company and its consolidated subsidiaries included or incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered thereby except as may be stated in the related notes thereto; and the other financial information included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown thereby.
(p) Since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) there has not been any material change in the capital stock or long-term debt of the Company or any of its subsidiaries, taken as a whole, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, assets, financial position, shareholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any transaction or agreement that is material to
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the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(q) Except as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (“Actions”) pending, to which the Company or any of its subsidiaries is a party or to which any property or asset of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have a Material Adverse Effect; no such Actions are threatened or, to the best knowledge of the Company and the Guarantor, contemplated by any governmental or regulatory authority or by others; and there are no current or pending Actions that are required under the Securities Act to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus that are not so described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(r) Ernst & Young LLP, who have certified certain financial statements of the Company and its subsidiaries is an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and as required by the Securities Act.
(s) Each preliminary prospectus filed pursuant to Rule 424 under the Securities Act complied when so filed in all material respects, and the Time of Sale Prospectus complies in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(t) Neither the Company nor the Guarantor is, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
(u) The Company and its subsidiaries are not subject to any claim in connection with their respective businesses, operations or properties, alleging liability or responsibility for violation of any Federal, state, local or foreign statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement or governmental restriction relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public
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systems, except for claims which, if adversely determined, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)), would have any liability (each, a “Plan”) has been maintained in compliance in all material respects with the requirements of ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no such Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no such Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) or “endangered status” or “critical status” (within the meaning of Section 305 of ERISA); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) with regard to the funding rules of Section 412 of the Code and a Plan’s ability to pay benefits thereunder when due has occurred; (vi) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and the Company shall undertake to maintain such qualification of each Plan and (vii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any material liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation, in the ordinary course and without default) in respect of a Plan, except in each case with respect to the events or conditions set forth in (i) through (vii) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect.
(w) (i) Neither the Company nor any of its subsidiaries or affiliates under the control of the Company (“controlled affiliates”), nor any director or officer, nor, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or controlled affiliates, has made any offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt 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) in order to influence official action, or to any person in violation of (a) the U.S. Foreign Corrupt Practices Act of 1977, (b) the UK Bribery Act 2010, and (c) any other applicable law, regulation, order, decree or directive having the force of law and relating to bribery or corruption (collectively, the “Anti-Corruption Laws”); and (ii) neither the Company nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable Anti-Corruption Laws.
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(x) The operations of the Company and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act of 1970, 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), the Money Laundering Control Act of 1986, the Anti-Money Laundering Act of 2020 and the applicable anti-money laundering statutes of jurisdictions where the Company and each of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”).
(y) (i) Neither the Company nor any of its subsidiaries, nor any director or officer, thereof, nor, to the Company’s knowledge, any employee, agent, controlled affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is:
(A) the subject of any sanctions administered or enforced by the United States Government (including the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State), the United Nations Security Council, the European Union (“EU”), His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, Crimea, the Zaporizhzhia and Kherson regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065, Cuba, Iran, North Korea and Syria).
(ii) The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) 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, or whose government is, the subject of Sanctions, except to the extent permitted for a Person required to comply with Sanctions;
(B) to fund or facilitate any money laundering or terrorist financing activities; or
(C) or in any other manner that will result in a violation of any applicable Anti-Corruption Laws, Anti-Money Laundering Laws, or Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past ten years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any
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dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was, or whose government is or was, the subject of Sanctions.
(z) The Company and its subsidiaries have conducted and will conduct their businesses in compliance with the Anti-Corruption Laws, the Anti-Money Laundering Laws, and Sanctions, and no investigation, inquiry, 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-Corruption Laws, the Anti-Money Laundering Laws or Sanctions is pending or, to the knowledge of the Company, threatened. The Company and its subsidiaries and affiliates have instituted and maintain policies and procedures reasonably designed to promote and achieve compliance with the applicable Anti-Corruption Laws, the Anti-Money Laundering Laws and Sanctions applicable to its business.
(aa) The Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease or otherwise use, all items of real and personal property that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(bb) (i) The Company and its subsidiaries own or have the right to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, domain names and other source indicators, copyrights and copyrightable works, know-how, trade secrets, systems, procedures, proprietary or confidential information and all other worldwide intellectual property, industrial property and proprietary rights (collectively, “Intellectual Property”) used in the conduct of their respective businesses; (ii) the Company and its subsidiaries’ conduct of their respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property right of any person; (iii) the Company and its subsidiaries are not aware of any pending or threatened material claim relating to infringement of a third party’s Intellectual Property rights; and (iv) to the knowledge of the Company and the Guarantor, the Intellectual Property of the Company and its subsidiaries is not being infringed, misappropriated or otherwise violated by any person, except in each case with respect to the events or conditions set forth in (i) through (iv) hereof, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(cc) (i) The Company and each of its subsidiaries have complied and are presently in compliance with all internal and external privacy policies, contractual obligations, industry standards, applicable laws, statutes, judgments, orders, rules and regulations of any court or arbitrator or other governmental or regulatory authority and any other legal obligations, in each case, relating to the collection, use, transfer, import, export, storage, protection, disposal and disclosure by the Company or any of its subsidiaries of personal,
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personally identifiable, household, sensitive, confidential or regulated data (“Data Security Obligations”, and such data, “Data”); (ii) the Company has not received any notification of or complaint regarding and is unaware of any other facts that, individually or in the aggregate, would reasonably indicate non-compliance with any Data Security Obligation; and (iii) there is no action, suit or proceeding by or before any court or governmental agency, authority or body pending or threatened alleging non-compliance with any Data Security Obligation, except in each case with respect to the events or conditions set forth in (i) through (iii) hereof, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) The Company and each of its subsidiaries have taken all commercially reasonable technical and organizational measures, consistent with industry standards for companies of similar size, necessary to protect the information technology systems and Data used in connection with the operation of the Company’s and its subsidiaries’ businesses. Without limiting the foregoing, the Company and its subsidiaries have used commercially reasonable efforts, consistent with industry standards for companies of similar size, to establish and maintain, and have established, maintained, implemented and materially complied with, reasonable information technology, information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguards and business continuity/disaster recovery and security plans that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Data used in connection with the operation of the Company’s and its subsidiaries’ businesses (“Breach”). There has been no such Breach, and the Company and its subsidiaries have not been notified of and have no knowledge of any event or condition that would reasonably be expected to result in, any such Breach, except in each case with respect to the events or conditions set forth herein would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ee) No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the best knowledge of the Company and the Guarantor, is contemplated or threatened and neither the Company nor the Guarantor is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the Company’s or any of the Company’s subsidiaries’ principal suppliers, contractors or customers, except as would not have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of cancellation or termination with respect to any collective bargaining agreement to which it is a party.
(ff) Except with respect to insurance policies and contracts issued by any Insurance Subsidiary or reinsurance policies with respect to the same, the Company and each of its subsidiaries self-insure or are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their respective businesses, assets, officers and directors are, to the knowledge of the Company, in full
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force and effect; the Company and its consolidated subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by the Company or any of its subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any such subsidiary has been refused any insurance coverage sought or applied for; and neither the Company nor any such consolidated subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(gg) The Company and its subsidiaries possess all licenses, sub-licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(hh) The Company and its subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal controls.
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(ii) The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(jj) The Company and its subsidiaries have paid or accrued all federal, state, local and foreign taxes and filed all tax returns required to be paid or filed through the date hereof; and, except as otherwise disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(kk) Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
(ll) Except as disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Securities registered pursuant to the Registration Statement.
(mm) Neither the Company nor the Guarantor has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(nn) No material forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(oo) Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
2. Agreements to Sell and Purchase. The Company hereby agrees to issue and sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the
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respective principal amount of Securities set forth opposite such Underwriter’s name in Schedule I hereto at a price equal to 99.186% of the principal amount thereof. The Company shall not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
3. Terms of Public Offering. Upon authorization by the Representatives of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions to be set forth in the Prospectus.
4. Payment and Delivery. Delivery to the Underwriters of and payment for the Securities shall be made at the office of Davis Polk & Wardwell LLP, at 9:30 A.M., New York City time, on September 20, 2024 (the “Closing Date”). The place of closing for the Securities and the Closing Date may be varied by agreement between the Underwriters and the Company.
The Securities will be delivered to the Underwriters, or the Trustee as custodian for The Depository Trust Company (“DTC”), against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer in immediately available funds to the account(s) specified by the Company to the Representatives, by causing DTC to credit the Securities to the account of the Underwriters at DTC, with any transfer taxes payable in connection with the sale of the Securities duly paid by the Company. The Securities will be evidenced by one or more global notes representing the Securities (collectively, the “Global Notes”) registered in the name of Cede & Co. as nominee of DTC. The Global Notes to be delivered to the Underwriters shall be made available to the Underwriters in New York City for inspection and packaging not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date.
5. Conditions to Obligations. The several obligations of the Underwriters are subject to the accuracy, on the date hereof and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company and the Guarantor of their respective obligations hereunder, and to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or the Guarantor by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its existing rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or the Guarantor (other than an announcement with positive implications of a possible upgrading); and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the
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earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate of the Company and the Guarantor in each case, dated the Closing Date and signed by an executive officer of the Company and the Guarantor, as the case may be, to the effect set forth in Section 5(a) above and to the effect that the representations and warranties of the Company and the Guarantor, as the case may be, contained in this Agreement are true and correct as of the Closing Date and that the Company and the Guarantor, as the case may be, has complied with all of the respective agreements and satisfied all of the respective conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering each such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Faegre Drinker Biddle & Reath LLP, special counsel for the Company, dated the Closing Date in form and substance as reasonably requested by the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion of My Chi To, Executive Vice President, Chief Legal Officer and Corporate Secretary of the Company, dated the Closing Date in form and substance as reasonably requested by the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion of Day Pitney, LLP, outside counsel for the Guarantor, dated the Closing Date in form and substance as reasonably requested by the Representatives.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as the Representatives may reasonably request.
(g) The Underwriters shall have received, on each of the date hereof and on the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing Date.
(h) The Underwriters shall have received, on and as of the Closing Date, satisfactory evidence of the good standing of the Company, the Guarantor and the Company’s significant subsidiaries in their respective jurisdictions of organization (to the
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extent that such concept is applicable) and their good standing in such other jurisdictions as the Underwriters may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions, provided that the evidence of good standing for those entities except for the Company may be as of any date from September 17, 2024 through and including the Closing Date.
(i) The Supplemental Indenture shall have been duly executed and delivered by a duly authorized officer of the Company, the Guarantor and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(j) On or prior to the Closing Date, the Company and the Guarantor shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in the form and substance reasonably satisfactory to counsel for the Underwriters.
6. Covenants of the Company and the Guarantor. The Company and the Guarantor jointly and severally covenant and agree with each Underwriter as follows:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to file any issuer free writing prospectus to the extent required by Rule 433 under the Securities Act, and to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; if required by Rule 430B(h) under the Securities Act, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Securities Act not later than may be required by Rule 424(b) under the Securities Act. The Company has paid the required Commission filing fees relating to the Securities.
(b) To furnish to you, without charge, four signed copies of the Registration Statement and the documents incorporated by reference therein (in each case, excluding exhibits thereto) and to furnish to you in New York City, without charge, and during the period mentioned in Section 6(f) or 6(g) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request; however, the Company shall not be required to furnish such documents (other than the Prospectus) if they are available, free of charge, by visiting EDGAR on the SEC web site at http://www.sec.gov.
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(c) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus prior to the Closing Date (other than an amendment or supplement as a result of a filing by the Company under the Exchange Act with the Commission), to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule, provided that the Company shall give you notice of its intention to make any filing pursuant to the Exchange Act from the execution of this Agreement to the Closing Date and, to the extent practicable, to furnish you with copies of any such documents a reasonable amount of time prior to such proposed filing.
(d) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to (i) make any offer relating to the Securities that would constitute a free writing prospectus or (ii) use or refer to any proposed free writing prospectus, in each case without your prior consent.
(e) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act any free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(f) If the Time of Sale Prospectus is being used to offer or sell the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if during such time any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if it shall become necessary to amend or supplement the Time of Sale Prospectus or to file any document under the Exchange Act incorporated by reference therein to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus or such document filed under the Exchange Act so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(g) If, during such period after the first date of the public offering of the Securities (not to exceed nine months), the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu
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thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if it shall become necessary to amend or supplement the Prospectus or to file any document under the Exchange Act incorporated by reference therein to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus or such document filed under the Exchange Act so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(h) To endeavor to qualify the Securities for offer and sale under state or foreign securities laws of such jurisdictions as you shall reasonably request, provided that in connection therewith, the Company shall not be required to qualify to do business in any jurisdiction where it is not now so qualified or subject itself to taxation in any such jurisdiction where it is not now so subject.
(i) To make generally available to the Company’s security holders and to you as soon as practicable an earning statement (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the Company’s option, Rule 158).
(j) During the period beginning from the date hereof and continuing to and including the Closing Date, the Company and the Guarantor will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or the Guarantor and having a tenor of more than one year.
(k) The Company will apply the net proceeds from the sale of the Securities as described in the Time of Sale Information and the Prospectus under the heading “Use of Proceeds.”
(l) Neither the Company nor the Guarantor will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) If the third anniversary of the initial effectiveness date of the Registration Statement occurs before all the Securities have been sold by the Underwriters, prior to the third anniversary to file a new shelf registration statement and to take any other action necessary to permit the public offering of the Securities to continue without interruption; references herein to the Registration Statement shall include the new registration statement that becomes effective with the Commission.
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7. Expenses. Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified; (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon; (iii) the fees and expenses incurred in connection with the qualification of the Securities under the laws of such jurisdictions as the Representatives may designate (including the reasonable fees and expenses of counsel for the Underwriters); (iv) any fees charged by rating agencies for rating the Securities; (v) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties in connection with the Indenture and the Securities); (vi) if required, all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority; (vii) the document production charges and expenses associated with printing this Agreement; and (viii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that, except as provided in this Section 7, Section 9 and the last paragraph of Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
8. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
9. Indemnity and Contribution. (a) The Company and the Guarantor jointly and severally agree to indemnify and hold harmless each Underwriter, the directors, officers, employees and selling agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of each Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under
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the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in Rule 433(h) under the Securities Act (a “road show”) or the Prospectus or any amendment or supplement thereto, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of or are based upon any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Guarantor, their respective directors, the officers of the Company who sign the Registration Statement, the officers of the Guarantor who sign the Registration Statement, and each person, if any, who controls the Company or the Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or supplement thereto, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show or the Prospectus or any amendment or supplement thereto, it being understood and agreed that the only such information consists of the following: under the heading “Underwriting” in the preliminary prospectus and the Prospectus (i) the information regarding the concessions and reallowances appearing in the third paragraph and (ii) the information regarding stabilization, syndicate covering transactions and penalty bids appearing in the sixth and seventh paragraphs (but only insofar as such information concerns the Underwriters).
(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 Section 9(a) or 9(b), 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 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
- 21 -
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 respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters, directors, officers, employees and selling agents of each Underwriter, and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, the Guarantor, their respective directors, the Company’s officers who sign the Registration Statement, the officers of the Guarantor who sign the Registration Statement, and each person, if any, who controls the Company or the Guarantor within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of (i) any such separate firm for the Underwriters, the directors, officers, employees and selling agents of each Underwriter, and such control persons and affiliates of any Underwriters, such firm shall in each case be designated in writing by the Representatives. In the case of any such separate firm for the Company or the Guarantor, and their respective directors, the applicable officers of the Company or the Guarantor, and control persons of the Company or the Guarantor, such firm shall be designated in writing by the Company. 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. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding 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 claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 9(a) or 9(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims,
- 22 -
damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, 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 indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 9(d)(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 9(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters in respect thereof. The relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other hand 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 the Guarantor or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective principal amount of Securities they have purchased hereunder, and not joint.
(e) The Company, the Guarantor and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) 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 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 9(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
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(f) The indemnity and contribution provisions contained in this Section 9 and the representations, warranties and other statements of the Company and the Guarantor contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any director, officer, employee or agent of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or the Company, the Guarantor, their respective officers or directors or any person controlling the Company or the Guarantor and (iii) acceptance of and payment for any of the Securities.
10. Termination. The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange or the NASDAQ Global Market, (ii) trading of any securities issued or guaranteed by the Company or the Guarantor shall have been suspended on any national securities exchange, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule I bears to the principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 11 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities and the principal amount of Securities with respect to which such default occurs is more than one-tenth of the principal amount of Securities to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the
- 24 -
part of any non-defaulting Underwriter, the Company or the Guarantor. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement (which, for purposes of this Section 11 shall not include termination by the Underwriters pursuant to clauses 10(i), (iii), (iv) or (v) of Section 10), or if for any reason the Company or the Guarantor shall be unable to perform its obligations under this Agreement, the Company and the Guarantor will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
12. Entire Agreement. (a) This 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 Securities, represents the entire agreement between the Company and the Guarantor, on the one hand, and the Underwriters, on the other, with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Securities.
(b) The Company acknowledges that in connection with the offering of the Securities: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, the Guarantor or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement, any contemporaneous written agreements, and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company and the Guarantor waive to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.
13. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement, if any, shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other
- 25 -
record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
14. Applicable Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
16. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you in care of: c/o BofA Securities, Inc., 114 West 47th Street, NY8-114-07-01, New York, New York 10036, Facsimile: 212-901-7881, Attention: High Grade Debt Capital Markets Transaction Management/Legal; c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, Facsimile: (212) 902-9316, Attention: Registration Department; c/o J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Facsimile: (212) 834-6081, Attention: Investment Grade Syndicate Desk; and Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10036, Facsimile: (212) 507-8999, Attention: Investment Banking Division; if to the Company, shall be delivered, mailed or sent to Voya Financial, Inc., 230 Park Avenue, New York, New York 10169, Attention: Chief Legal Officer and if to the Guarantor, shall be delivered, mailed or sent to Voya Holdings Inc., care of Voya Financial, Inc., 230 Park Avenue, New York, New York 10169 (Fax: 212-309-8491), Attention: Chief Legal Officer.
17. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
18. Acknowledgement and Consent to Bail-In Powers. Notwithstanding any other term of this Agreement or any other agreements, arrangements, or understanding between the Underwriters and the Company and the Guarantor, the Company and the Guarantor acknowledge, accept, and agree to be bound by:
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of the Underwriters to the Company or the
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Guarantor under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: (i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; (ii) the conversion of all, or a portion, of the BRRD Liability into shares, other securities or other obligations of the Underwriters or another person (and the issue to or conferral on the Company or the Guarantor of such shares, securities or obligations); (iii) the cancellation of the BRRD Liability; (iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
(c) As used in this Section 18, “Bail-in Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; “Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation; “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/; “BRRD Liability” has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in Legislation; and “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Underwriters.
19. Recognition of the U.S. Special Resolution Regimes. (a)In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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
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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.
[Signature Page Follows]
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| VOYA FINANCIAL, INC. | ||||
| By: |
/s/ Michael R. Katz | |||
| Name: | Michael R. Katz | |||
| Title: | Executive Vice President, Finance | |||
| By: |
/s/ Michelle P. Luk | |||
| Name: | Michelle P. Luk | |||
| Title: | Senior Vice President and Treasurer | |||
| VOYA HOLDINGS INC. | ||||
| By: |
/s/ Michelle P. Luk | |||
| Name: |
Michelle P. Luk | |||
| Title: |
Senior Vice President and Treasurer | |||
| By: |
/s/ Teddy Cordes | |||
| Name: |
Teddy Cordes | |||
| Title: |
Vice President and Assistant | |||
| Treasurer | ||||
[Signature Page to Underwriting Agreement]
Accepted as of the date hereof
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto:
| BOFA SECURITIES, INC. | ||||
| By: |
/s/ Randolph B. Randolph | |||
| Name: |
Randolph B. Randolph | |||
| Title: |
Managing Director | |||
| GOLDMAN SACHS & CO. LLC | ||||
| By: |
/s/ Thomas Healy | |||
| Name: |
Thomas Healy | |||
| Title: |
Managing Director | |||
| J.P. MORGAN SECURITIES LLC | ||||
| By: |
/s/ Stephen L. Sheiner | |||
| Name: |
Stephen L. Sheiner | |||
| Title: |
Executive Director | |||
| MORGAN STANLEY & CO. LLC | ||||
| By: |
/s/ Erica Mui | |||
| Name: |
Erica Mui | |||
| Title: |
Managing Director | |||
[Signature Page to Underwriting Agreement]
SCHEDULE I
| Principal Amount of Securities to be Purchased |
||||
| Goldman Sachs & Co. LLC |
$100,000,000 | |||
| BofA Securities, Inc. |
$80,000,000 | |||
| J.P. Morgan Securities LLC |
$80,000,000 | |||
| Morgan Stanley & Co. LLC |
$80,000,000 | |||
| Wells Fargo Securities, LLC |
$20,000,000 | |||
| BMO Capital Markets Corp. |
$8,000,000 | |||
| Citigroup Global Markets Inc. |
$8,000,000 | |||
| Deutsche Bank Securities Inc. |
$8,000,000 | |||
| Loop Capital Markets LLC |
$8,000,000 | |||
| Mizuho Securities USA LLC |
$8,000,000 | |||
| Total |
$400,000,000 | |||
-I-1-
SCHEDULE II
Time of Sale Prospectus
Final Term Sheet, dated September 13, 2024, filed pursuant to Rule 433 under the Securities Act, substantially in the form attached as Exhibit A to this Schedule II.
-II-1-
Exhibit A to Schedule II
Voya Financial, Inc.
$400,000,000 5.000% Senior Notes due 2034
Pricing Term Sheet
| Issuer: | Voya Financial, Inc. | |
| Guarantor: | Voya Holdings Inc. | |
| Expected Ratings (Moody’s/S&P/Fitch)*: | [Intentionally omitted] | |
| Securities: | 5.000% Senior Notes due 2034 | |
| Offering Format: | SEC Registered | |
| Trade Date: | September 13, 2024 | |
| Settlement Date: | September 20, 2024 (T+5)** | |
| Maturity: | September 20, 2034 | |
| Principal Amount: | $400,000,000 | |
| Price to Public: | 99.836% of principal amount | |
| Net Proceeds to Issuer (Before Transaction Expenses and After Underwriting Fees): | $396,744,000 | |
| Interest Rate: | 5.000% per annum | |
| Yield to Maturity: | 5.021% | |
| Spread to Benchmark Treasury: | +137.5 basis points | |
| Benchmark Treasury: | 3.875% due August 15, 2034 | |
| Benchmark Treasury Price/Yield: | 101-28+ / 3.646% | |
| Interest Payment Dates: | Semi-annually on March 20 and September 20 of each year, commencing March 20, 2025 | |
| Optional Redemption: |
||
-II-2-
| Make Whole-Call: |
At any time prior to June 20, 2034 at a discount rate of Treasury plus 25 basis points | |
| Par Call: |
On or after June 20, 2034 at 100% | |
| Minimum Denominations: | $2,000 and integral multiples of $1,000 in excess thereof | |
| CUSIP: | 929089 AH3 | |
| ISIN: | US929089AH39 | |
| Joint Book-Running Managers: | Goldman Sachs & Co. LLC BofA Securities, Inc. J.P. Morgan Securities LLC Morgan Stanley & Co. LLC Wells Fargo Securities, LLC | |
| Senior Co-Managers: | BMO Capital Markets Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. Loop Capital Markets LLC Mizuho Securities USA LLC | |
* The security ratings above are not a recommendation to buy, sell or hold the securities offered hereby. The ratings may be subject to revision or withdrawal at any time by Moody’s, Standard and Poor’s and Fitch. Each of the security ratings above should be evaluated independently of any other security rating.
** Under Rule 15c6-1 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), trades in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes prior to the date that is more than one business day preceding the settlement date will be required, by virtue of the fact that the notes initially will settle T+5, to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement and should consult their own advisors.
The issuer and guarantor have filed a registration statement (including a base prospectus and a prospectus supplement) with the U.S. Securities Exchange Commission (SEC) for the offering to which this communication relates. Before you invest, you should read the prospectus supplement for this offering, the prospectus in that registration statement and any other documents the issuer has filed with the SEC for more complete information about the issuer, the guarantor and this offering. You may get these documents for free by visiting EDGAR on the SEC web site at http://www.sec.gov. Alternatively, the issuer, any underwriter
-II-3-
or any dealer participating in the offering will arrange to send you the prospectus supplement and prospectus if you request it by calling BofA Securities, Inc. toll-free at 1-800-294-1322, by calling Goldman Sachs & Co. LLC toll-free at 1-866-471-2526, by calling J.P. Morgan Securities LLC toll-free at 1-866-803-9204 or calling Morgan Stanley & Co. LLC toll-free at 1-866-718-1649.
-II-4-
SCHEDULE III
Significant Subsidiaries
Voya Retirement Insurance and Annuity Company
ReliaStar Life Insurance Company
-III-1-
Exhibit 4.1
Execution Version
VOYA FINANCIAL, INC.
VOYA HOLDINGS INC.
5.000% Senior Notes due 2034
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of September 20, 2024
to the Indenture Dated as of July 13, 2012
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 |
| |||||
| DEFINITIONS |
| |||||
| Section 1.01. | Certain Terms Defined in the Indenture; Additional Terms | 2 | ||||
| ARTICLE 2 |
| |||||
| FORM AND TERMS OF THE NOTES |
| |||||
| Section 2.01. | Form and Dating | 3 | ||||
| Section 2.02. | Transfer and Exchange | 4 | ||||
| Section 2.03. | Paying Agent | 4 | ||||
| Section 2.04. | Terms of the Notes | 5 | ||||
| Section 2.05. | Optional Redemption | 6 | ||||
| Section 2.06. | Applicability of Certain Provisions of the Indenture in respect of the Notes | 6 | ||||
| ARTICLE 3 |
| |||||
| MISCELLANEOUS |
| |||||
| Section 3.01. | Trust Indenture Act Controls | 8 | ||||
| Section 3.02. | Governing Law | 8 | ||||
| Section 3.03. | Payment of Notes | 8 | ||||
| Section 3.04. | Multiple Counterparts | 8 | ||||
| Section 3.05. | Severability | 8 | ||||
| Section 3.06. | Relation to Indenture | 9 | ||||
| Section 3.07. | Ratification | 9 | ||||
| Section 3.08. | Effectiveness | 9 | ||||
| Section 3.09. | Trustee Not Responsible for Recitals or Issuance of Securities | 9 | ||||
| ARTICLE 4 |
| |||||
| GENERAL GUARANTEE AGREEMENT |
| |||||
| Section 4.01. | General Guarantee Agreement Inapplicable | 9 | ||||
| EXHIBITS |
| |||||
| EXHIBIT A | Form of Note | |||||
i
EIGHTH SUPPLEMENTAL INDENTURE
EIGHTH SUPPLEMENTAL INDENTURE (this “Eighth Supplemental Indenture”), dated as of September 20, 2024, among VOYA FINANCIAL, INC., a Delaware corporation (the “Company”), having its principal executive offices at 230 Park Avenue, New York, New York 10169, VOYA HOLDINGS INC., a Connecticut corporation, as the initial Subsidiary Guarantor hereunder, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company (formerly known as ING U.S., Inc.), the initial Subsidiary Guarantor (formerly known as Lion Connecticut Holdings Inc.) and the Trustee (as successor in interest to U.S. Bank National Association) executed and delivered an Indenture, dated as of July 13, 2012 (the “Indenture”), to provide for the issuance by the Company from time to time of Securities to be issued in one or more series as provided in the Indenture.
WHEREAS, the issuance and sale of $400,000,000 aggregate principal amount of a new series of the Securities of the Company designated as its 5.000% Senior Notes due 2034 and, if and when issued, any Additional Notes, as provided herein (the “Notes”), to be fully, irrevocably and unconditionally guaranteed by the Subsidiary Guarantors, have been authorized by resolutions adopted by the Board of Directors of the Company and the board of directors of the initial Subsidiary Guarantor.
WHEREAS, the Company desires to issue and sell $400,000,000 aggregate principal amount of the Notes on the date hereof, to be fully, irrevocably and unconditionally guaranteed by the Subsidiary Guarantor in accordance with Article 12 of the Indenture.
WHEREAS, Sections 2.01 and 10.01 of the Indenture provide that the Company, when authorized by a Board Resolution, and the Trustee may amend or supplement the Indenture to provide for the issuance of and to establish the form or terms and conditions of Securities of any series as permitted by the Indenture.
WHEREAS, the Company desires to establish the form, terms and conditions of the Notes.
WHEREAS, all things necessary to make this Eighth Supplemental Indenture a legal, valid and binding supplement to the Indenture according to its terms and the terms of the Indenture have been done.
NOW, THEREFORE, for and in consideration of the premises and, in the case of the Notes, the purchase of the Notes by the Holders thereof, the Company, the initial Subsidiary Guarantor and the Trustee mutually covenant and agree, as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Terms Defined in the Indenture; Additional Terms.
(a) For purposes of this Eighth Supplemental Indenture, all capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as amended hereby.
(b) The following capitalized terms used herein shall be defined accordingly:
“Agent Member” means a member of, or a participant in, the Depository.
“Additional Notes” shall have the meaning set forth in Section 2.04(b).
“Depository” with respect to the Notes, shall have the meaning set forth in Section 2.01(a).
“DTC” means The Depositary Trust Company.
“Global Note” means a Note in the form of a Global Security issued to the Depository or its nominee, substantially in the form of Exhibit A.
“H.15 TCM” shall have the meaning set forth in the definition of “Treasury Rate.”
“Par Call Date” means June 20, 2034.
“Remaining Life” shall have the meaning set forth in the definition of “Treasury Rate.”
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent H.15 under the caption “U.S. government securities — Treasury constant maturities — Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the remaining life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the remaining life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the remaining life, the yield for the single Treasury constant maturity on H.15 closest to the remaining life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
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If on the third Business Day preceding the Redemption Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
ARTICLE 2
FORM AND TERMS OF THE NOTES
Section 2.01. Form and Dating. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A attached hereto. The Notes shall be executed on behalf of the Company by any Officer and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these Officers on the Notes may be manual or by facsimile. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000, in excess thereof.
The terms and notations contained in the Notes shall constitute, and are hereby expressly made, a part of the Indenture, as supplemented and amended by this Eighth Supplemental Indenture, and the Company, the initial Subsidiary Guarantor, and the Trustee, by their execution and delivery of this Eighth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. The Notes shall be issued initially in the form of one or more fully registered Global Securities, which shall initially be deposited on behalf of the purchasers of the Notes represented thereby with The Depository Trust Company, New York, New York (the “Depository”) and registered in the name of Cede & Co., the Depository’s nominee, duly executed by the Company, authenticated by the Trustee and with guarantees endorsed thereon as hereinafter provided. The aggregate principal amount of outstanding Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided.
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The Global Notes may not be transferred except by the Depository, in whole and not in part, to another nominee of the Depository or to a successor of the Depository or its nominee. If at any time the Depository for the Notes notifies the Company that the Depository is unwilling to continue as Depository for the Global Notes or ceases to be a clearing agency, or if the Company so elects or if there is an Event of Default under the Notes, then the Company shall execute, and the Trustee shall, upon receipt of a Company Order for authentication, authenticate and deliver, certificated Notes in an aggregate principal amount equal to the principal amount of the Global Notes in exchange for such Global Note, which the Depository will distribute to its participants.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to the Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with this Section 2.01(b), authenticate and deliver the Global Notes that shall be registered in the name of the Depository or the nominee of the Depository and shall be delivered by the Trustee to the Depositary or pursuant to the Depositary’s instructions.
Agent Members will have no rights under this Eighth Supplemental Indenture with respect to any Global Note held on their behalf by the Depository, and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner and Holder of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, the Depository or its nominee may grant proxies and otherwise authorize any Person (including any Agent Member and any Person that holds a beneficial interest in a Global Note through an Agent Member) to take any action which a Holder is entitled to take under this Eighth Supplemental Indenture or the Notes, and nothing herein will impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any security.
(c) Certificated Notes. Notes issued in certificated form shall be substantially in the form of Exhibit A attached hereto, but without including the text referred to therein as applying only to a Global Note. Except as provided above in subsection (a), owners of beneficial interests in the Global Notes will not be entitled to receive physical delivery of certificated Notes.
Section 2.02. Transfer and Exchange. The transfer or exchange of beneficial interests in the Global Notes shall be effected through the Depository, in accordance with the Indenture and the procedures of the Depository therefor. Beneficial interests in a Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in such Global Note.
Section 2.03. Paying Agent. The Company appoints the Trustee as the initial agent of the Company for the payment of the principal of (and premium, if any) and interest on the Notes, and the Corporate Trust Office be and hereby is, designated as the office or agency where the Notes may be presented for payment and where notices to or demands upon the Company in respect of the Notes and the Indenture, as supplemented and amended by this Eighth Supplemental Indenture, pursuant to which the Notes are to be issued may be served. The Company may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which the paying agent acts.
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Section 2.04. Terms of the Notes. The following terms relating to the Notes are hereby established:
(a) Title. The Notes shall constitute a series of Securities having the title “5.000% Senior Notes due 2034.”
(b) Principal Amount. The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture, as supplemented and amended by this Eighth Supplemental Indenture, shall be $400,000,000. The Company may from time to time, without the consent of the Holders of Notes, issue additional Notes (in any such case “Additional Notes”) of a series having the same ranking and the same interest rate, maturity and other terms as the Notes, except for the issue date, the public offering price and, in some cases, the first Interest Payment Date and interest accrual date, provided that no Event of Default with respect to the Notes shall have occurred and be continuing, provided further that unless any such Additional Notes are issued in a “qualified reopening,” are treated as part of the same issue as the Notes initially issued hereunder for U.S. federal income tax purposes, or are issued with less than a de minimis amount of original issue discount, such Additional Notes shall have a separate CUSIP number. Any Additional Notes and the existing Notes will constitute a single series under the Indenture and all references to the relevant Notes shall include the Additional Notes unless the context otherwise requires.
(c) Maturity Date. The entire outstanding principal of the Notes shall be payable on September 20, 2034.
(d) Interest Rate. The rate at which the Notes shall bear interest shall be 5.000% per annum; the date from which interest shall accrue on the Notes shall be September 20, 2024, or the most recent Interest Payment Date to which interest has been paid or provided for; the Interest Payment Dates for the Notes shall be March 20 and September 20 of each year, beginning March 20, 2025 (whether or not a Business Day), provided, that interest payable at the Stated Maturity or upon redemption will be paid to the person to whom principal is payable; the interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, will be paid, in immediately available funds, to the Person in whose name the Notes (or one or more predecessor Securities) are registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day, whether or not a Business Day, immediately preceding such Interest Payment Date, provided, that interest payable at the Stated Maturity or upon redemption will be paid to the person to whom principal is payable. Payment of principal and interest on the Notes will be made at the Corporate Trust Office of the Trustee or such other office or agency of the Company as may be designated for such purpose, in such currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that each installment of interest and principal on the Notes may at the Company’s option be paid in immediately available funds by transfer to an account maintained by the payee located in the United States of America.
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(e) Currency. The currency of denomination of the Notes is United States Dollars. Payment of principal of and interest and premium, if any, on the Notes will be made in United States Dollars.
Section 2.05. Optional Redemption.
Prior to the Par Call Date, the Company may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
| (1) | (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points less (b) interest accrued to the date of redemption, and |
| (2) | 100% of the principal amount of the Notes to be redeemed, |
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. Calculations and selections in the foregoing will be made by the Company or on its behalf by a person designated by the Company; provided, however, that such calculations and selections shall not be a duty or obligation of the Trustee under the Indenture.
Notice of any redemption will be mailed (or, so long as the Notes are held in the form of one or more Global Notes deposited with DTC, otherwise transmitted in accordance with the procedures of DTC) at least 10 days but not more than 60 days before the Redemption Date to each holder of Notes to be redeemed at its registered address.
Section 2.06. Applicability of Certain Provisions of the Indenture solely in respect of the Notes.
(a) Paragraph (a) of Section 3.04 Notice of Redemption of the Indenture shall be amended to add the following as the final paragraphs of such Paragraph (a) solely in respect of the Notes:
“Any notice of redemption of Securities to be redeemed at the option of the Company additionally may state that such redemption shall be conditional, in the Company’s discretion, on one or more conditions precedent, and that such
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conditional notice of redemption may be rescinded by the Company if it determines that any or all such conditions will not be satisfied by the Redemption Date, and that in such event, such notice of redemption shall be of no further force or effect and the Company shall not be required to redeem the applicable Securities on the Redemption Date or otherwise.
In the event a notice of redemption contains such a condition or conditions and the Company determines that any or all such conditions will not be satisfied prior to the Redemption Date, the Company shall provide written notice to the Trustee prior to the close of business at least two (2) Business Days prior to the Redemption Date. Such notice may provide that the notice of redemption shall be rescinded and the redemption shall not occur, as determined by the Company in accordance with the preceding paragraph and, upon receipt of such notice, the notice of redemption shall be rescinded and the redemption shall not occur, as provided in such notice. Upon receipt of such notice, the Trustee shall provide such notice to each Holder of the applicable Securities in the same manner in which the notice of redemption was provided.”
(b) Section 3.06 Securities Payable on Redemption Date of the Indenture shall be deleted, amended and restated in its entirety to read as follows solely in respect of the Notes:
“(a) Notice of redemption having been given as aforesaid, and, in the case of a conditional notice of redemption, not thereafter rescinded in accordance with Section 3.04, the Securities to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and, from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 2.07.
(b) Except in the case of a redemption of Securities to be redeemed at the option of the Company where the notice of redemption therefor has been rescinded, if any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.”
(c) Subsection (i) of Paragraph (a) of Section 5.06 Limitation on Liens of the Indenture is hereby amended and restated in its entirety as follows solely in respect of the Notes:
“(i) Voya Holdings, Inc., Voya Retirement Insurance and Annuity Company, ReliaStar Life Insurance Company or Voya Investment Management LLC;”
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(d) Paragraph (b) of Section 5.07 Limitation on Disposition of Stock of Certain Subsidiaries of the Indenture is hereby amended and restated in its entirety as follows solely in respect of the Notes:
(i) adding the word “or” at the end of subsection (ii).
(ii) deleting the “; or” at the end of subsection (iii) and adding a “.” at the end of such subsection.
(iii) deleting in its entirety subsection (iv).
(e) The last sentence of Paragraph (a) of Section 6.01 Company May Consolidate Etc., Only on Certain Terms of the Indenture, is hereby deleted in its entirety solely in respect of the Notes.
ARTICLE 3
MISCELLANEOUS
Section 3.01. Trust Indenture Act Controls. If any provision of this Eighth Supplemental Indenture limits, qualifies or conflicts with another provision which is required to be included in this Eighth Supplemental Indenture by the Trust Indenture Act, the required provision shall control. If any provision of this Eighth Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Eighth Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 3.02. Governing Law. This Eighth Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.
Section 3.03. Payment of Notes. Payments in respect of the Notes represented by the Global Notes are to be made by wire transfer of immediately available funds to the accounts specified by the Holders of the Global Notes. With respect to certificated Notes, the Company will make all payments through the Paying Agent by mailing a check to each Holder’s registered address; provided, however, that payments may also be made, in the case of a Holder of at least $1.0 million aggregate principal amount of Notes, by wire transfer to the account specified by the Holder thereof.
Section 3.04. Multiple Counterparts. The parties may sign multiple counterparts of this Eighth Supplemental Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same Eighth Supplemental Indenture.
Section 3.05. Severability. Each provision of this Eighth Supplemental Indenture shall be considered separable and if for any reason any provision which is not essential to the effectuation of the basic purpose of this Eighth Supplemental Indenture or 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 and a Holder shall have no claim therefor against any party hereto.
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Section 3.06. Relation to Indenture. This Eighth Supplemental Indenture constitutes a part of the Indenture, the provisions of which (as modified by this Eighth Supplemental Indenture) shall apply to the series of Securities established by this Eighth Supplemental Indenture but shall not modify, amend or otherwise affect the Indenture insofar as it relates to any other series of Securities or modify, amend or otherwise affect in any manner the terms and conditions of the Securities of any other series.
Section 3.07. Ratification. The Indenture, as supplemented and amended by this Eighth Supplemental Indenture, is in all respects ratified and confirmed. The Indenture and this Eighth Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Eighth Supplemental Indenture supersede any conflicting provisions included in the Indenture unless not permitted by law. The Trustee accepts the trusts created by the Indenture, as supplemented and amended by this Eighth Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Indenture, as supplemented and amended by this Eighth Supplemental Indenture.
Section 3.08. Effectiveness. The provisions of this Eighth Supplemental Indenture shall become effective as of the date hereof.
Section 3.09. Trustee Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Eighth Supplemental Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
ARTICLE 4
GENERAL GUARANTEE AGREEMENT
Section 4.01. General Guarantee Agreement Inapplicable. Without in any way limiting the obligations of the Company or any Subsidiary Guarantor hereunder, the General Guarantee Agreement dated April 17, 2012 by Voya Holdings Inc. in favor of each person to whom the Company may owe any obligations evidenced by senior unsecured debentures, notes or similar debt instruments issued by the Company shall be inapplicable to the Securities. The Trustee shall not be entitled to enforce any rights under the General Guarantee Agreement with respect to any Securities or other obligation under this Eighth Supplemental Indenture. The Trustee waives all rights and remedies it may have under the General Guarantee Agreement with respect to any obligation under this Eighth Supplemental Indenture. For the avoidance of doubt, any obligation under this Eighth Supplemental Indenture is not an obligation as defined in the General Guarantee Agreement. This Article 4 does not in any way limit any obligation of the Company under any Securities or any Subsidiary Guarantor under its Subsidiary Guarantee.
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This instrument 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 one and the same instrument.
[Remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed as of the date first above written.
| VOYA FINANCIAL, INC. | ||
| By: | /s/ Michael R. Katz | |
| Name: Michael R. Katz | ||
| Title: Executive Vice President, Finance | ||
| By: | /s/ Michelle P. Luk | |
| Name: Michelle P. Luk | ||
| Title: Senior Vice President and Treasurer | ||
| VOYA HOLDINGS INC. | ||
| By: | /s/ Michelle P. Luk | |
| Name: Michelle P. Luk | ||
| Title: Senior Vice President and Treasurer | ||
| By: | /s/ Teddy Cordes | |
| Name: Teddy Cordes | ||
| Title: Vice President and Assistant Treasurer | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ David J. Ganss | |
| Name: David J. Ganss | ||
| Title: Vice President | ||
[Signature Page to Eighth Supplemental Indenture]
EXHIBIT A
Form of 5.000% Senior Note due 2034
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), 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 IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.
VOYA FINANCIAL, INC.
5.000% Senior Note due 2034
Fully, Irrevocably and Unconditionally Guaranteed by Voya Holdings Inc.
Principal Amount: $__________
No. ____
CUSIP: 929089 AH3
ISIN: US929089AH39
Voya Financial, 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 __________, or registered assigns, the principal sum of $__________ on September 20, 2034 (the “Maturity Date”) (except to the extent redeemed or repaid prior to the Maturity Date) and to pay interest thereon from September 20, 2024 or from the most recent Interest Payment Date to which interest has been paid or duly provided for semi-annually at the rate of 5.000% per annum, on March 20 and September 20 (each such date, an “Interest Payment Date”), commencing March 20, 2025, until the principal hereof is paid or made available for payment.
Payment of Interest. The interest so payable, and punctually paid or made available for payment, on any Interest Payment Date, will, as provided in the Indenture, be paid, in immediately available funds, to the Persons in whose names this Note (or one or more predecessor securities) is registered at the close of business on the Regular Record Date for such interest, which shall be fifteenth calendar day, whether or not a Business Day, immediately preceding such Interest Payment Date, provided, that interest payable at the Maturity Date or upon redemption will be paid to the person to whom principal is payable. Any such interest not punctually paid or duly provided for (“Defaulted Interest”) will forthwith cease to be payable to the Holder on such Regular Record Date, and such Defaulted Interest, may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a special record date (the “Special Record Date”) for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Place of Payment. Payment of principal, premium, if any, and interest on this Note will be made at the Corporate Trust Office of the Trustee or such other office or agency of the Company as may be designated for such purpose, in such currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that each installment of interest, premium, if any, and principal on this Note may at the Company’s option be paid in immediately available funds by transfer to an account maintained by the payee located in the United States of America.
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Time of Payment. In any case where any Interest Payment Date, the Maturity Date or any date fixed for redemption or repayment of the Notes shall not be a Business Day, then (notwithstanding any other provision of the Indenture or this Note), payment of principal or interest, if any, need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date, the Maturity Date or the date so fixed for redemption or repayment, and no interest shall accrue in respect of the delay.
General. This Note is one of a duly authorized issue of Securities of the Company, issued and to be issued in one or more series under an indenture (the “Base Indenture”), dated as of July 13, 2012, among the Company, Voya Holdings Inc., as the initial Subsidiary Guarantor, and U.S. Bank Trust Company, National Association (herein called the “Trustee,” which term includes any successor Trustee under the Indenture with respect to a series of which this Note is a part), as supplemented and amended by an Eighth Supplemental Indenture thereto, dated as of September 20, 2024 (the “Eighth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Subsidiary Guarantor party thereto from time to time and the Trustee. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantors, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Note is one of a duly authorized series of Securities designated as “5.000% Senior Notes due 2034” (collectively, the “Notes”), initially limited in aggregate principal amount to $400,000,000.
Further Issuance. The Company may from time to time, without the consent of the Holders of the Notes, issue additional Securities (the “Additional Securities”) of this series having the same ranking and the same interest rate, maturity and other terms as the Notes. Any Additional Securities of this series and the Notes will constitute a single series under the Indenture and all references to the Notes shall include the Additional Securities unless the context otherwise requires; provided that unless any such Additional Securities are issued in a “qualified reopening”, are treated as part of the same issue as the Notes for U.S. federal income tax purposes, or are issued with less than a de minimis amount of original issue discount, such Additional Securities shall have a separate CUSIP number.
Events of Default. If an Event of Default with respect to the Notes shall have occurred and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
Sinking Fund. The Notes are not subject to any sinking fund.
Redemption and Repurchase. The Notes are subject to optional redemption as further described in the Indenture. There is no sinking fund or mandatory redemption applicable to the Notes.
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Restrictive Covenants. The Indenture contains certain covenants that, among other things, limit the ability of the Company and its Subsidiaries to create liens or the ability of the Company to consolidate, merge or sell, transfer or lease all or substantially all of its assets.
Defeasance and Covenant Defeasance. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Note and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.
Modification and Waivers; Obligations of the Company Absolute. 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 of each series. Such amendment may be effected under the Indenture at any time by the Company, and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes of each series affected thereby. The Indenture also contains provisions permitting the Holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding, on behalf of the Holders of all outstanding Securities, to waive compliance by the Company with certain provisions of the Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority in aggregate principal amount of the outstanding Securities of individual series to waive on behalf of all of the Holders of Securities of such individual series certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon the Holder of this Note and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place, and rate, and in the currency, herein prescribed.
Subsidiary Guarantees. This Note will be entitled to the benefits of certain Subsidiary Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Subsidiary Guarantors, the Trustee and the Holders.
No Recourse Against Others. No director, officer, agent, employee, incorporator, stockholder, partner, member, or manager of the Company or any Subsidiary Guarantor shall have any liability for any obligations of the Company or any Subsidiary Guarantor under any Notes, the Indenture or any Subsidiary Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
A-4
Limitation on Suits. As set forth in, and subject to, the provisions of the Indenture, no Holder of any Note will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to this series, the Holders of not less than 25% in principal amount of the outstanding Notes shall have made written request, and offered a reasonable indemnity to the Trustee to institute such proceedings as Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the outstanding Notes a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or interest on this Note on or after the respective due dates expressed herein.
Authorized Denominations. The Notes are issuable only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Registration of Transfer or Exchange. As provided in the Indenture and subject to certain limitations herein and therein set forth, the transfer of this Note is registrable in the register of the Notes maintained by the Security Registrar upon surrender of this Note for registration of transfer, at the office or agency of the Company in any place where the principal of and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar, duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein and therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of different authorized denominations, as requested by the Holders surrendering the same.
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.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Holder as the owner hereof for all purposes (except with respect to certain payments of Defaulted Interest), whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Defined Terms. All terms used in this Note, which are defined in the Indenture and are not otherwise defined herein, shall have the meanings assigned to them in the Indenture.
Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of New York.
Unless the certificate of authentication hereon has been executed by the Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank; signature pages follow]
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed and its seal to be hereunto affixed and attested.
Dated: _______________
| VOYA FINANCIAL, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
| Attest: | ||
| By: | ||
| Name: | ||
| Title: | ||
A-6
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture, as such is supplemented by the within-mentioned Eighth Supplemental Indenture.
Dated: _______________
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, | ||
| By: | ||
| Name: | ||
| Title: Authorized Signatory | ||
A-7
ASSIGNMENT FORM
I or we assign and transfer this Note to
| (Print or type name, address and zip code of assignee or transferee) | ||
|
| ||
| (Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. | ||
| Dated: | Signed: | |
| (Sign exactly as name appears on the other side of this Note) | ||
| Signature Guarantee: | ||
| Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee) | ||
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
A-8
[Attach to Global Note only]
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE
VOYA FINANCIAL, INC.
5.000% Senior Note due 2034
Fully, Irrevocably and Unconditionally Guaranteed by Voya Holdings Inc.
The initial principal amount of this Global Note is $ . The following increases or decreases in this Global Note have been made:
| Date |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Trustee or Note Custodian |
Exhibit 5.1
| Faegre Drinker Biddle & Reath LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, Minnesota 55402 +1 612 766 7000 main +1 612 766 1600 fax |
September 20, 2024
Voya Financial, Inc.
230 Park Avenue
New York, NY 10169
Ladies and Gentlemen:
We have acted as counsel for Voya Financial, Inc., a Delaware corporation (the “Company”), in connection with the purchase by the several underwriters (the “Underwriters”) listed in Schedule I to the Underwriting Agreement dated September 13, 2024 (the “Underwriting Agreement”), among the Company, Voya Holdings Inc., a Connecticut corporation (the “Guarantor” and, together with the Company, the “Opinion Parties”), BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives (the “Representatives”) of the Underwriters, of $400,000,000 aggregate principal amount of 5.000% Notes due 2034 (the “Notes”) issued under an Indenture, dated as of July 13, 2012 (the “Base Indenture”), between the Company (f/k/a ING U.S., Inc.), the Guarantor (f/k/a Lion Connecticut Holdings Inc.) and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as supplemented by the Eighth Supplemental Indenture, dated as of September 20, 2024 (the “Eighth Supplemental Indenture”), among the Company, the Guarantor and the Trustee (the Base Indenture, as supplemented by the Eighth Supplemental Indenture, being herein called the “Indenture”). The Notes will be guaranteed on an unsecured, senior basis (the “Guarantees”) by the Guarantor.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
In rendering the opinions expressed herein, we have examined:
(i) the Registration Statement on Form S-3, File Nos. 333-262924 and 333-262924-01, as amended by Pre-Effective Amendment No. 1, filed by the Company with the Securities and Exchange Commission (the “Commission”) on February 23, 2022 and November 9, 2022, respectively, and effective November 15, 2022, including the exhibits thereto and the base prospectus constituting a part thereof and including the documents incorporated by reference therein (such Registration Statement, as amended, the “Registration Statement”), relating to the offering from time to time of the securities referred to therein pursuant to Rule 415 promulgated under the Securities Act of 1933, as amended (the “Act”);
| -2- | September 20, 2024 |
(ii) the preliminary prospectus supplement dated September 13, 2024 and the final prospectus supplement dated September 13, 2024 (the “Prospectus Supplement”), including the documents incorporated by reference therein, filed with the Commission pursuant to Rule 424 promulgated under the Act;
(iii) the Underwriting Agreement;
(iv) the Indenture;
(v) the executed copies of the global notes evidencing the Notes; and
(vi) the Amended and Restated Certificate of Incorporation of the Company, as amended to the date hereof, the Amended and Restated Bylaws of the Company, as amended to the date hereof, and the corporate actions taken by the Company in connection with the Indenture, the issuance of the Notes and the Guarantees.
We also have examined the originals, or duplicates or certified or conformed copies, of such corporate records and other records, agreements, documents, certificates and instruments, and have reviewed such authorities of law, as we have deemed relevant and necessary as a basis for our opinions hereinafter set forth.
On the basis of and subject to the foregoing and the qualifications set forth in Annex I attached hereto, we are of the opinion that:
1. Assuming the due authorization, execution and delivery of the Eighth Supplemental Indenture by the Trustee and the Guarantor, the Eighth Supplemental Indenture is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the same may be limited by the effect of bankruptcy, insolvency, receivership, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States.
2. Assuming the due authorization, execution and delivery of the Eighth Supplemental Indenture by the Trustee and the Guarantor, the Eighth Supplemental Indenture is a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as the same may be limited by the effect of bankruptcy, insolvency, receivership, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States.
| -3- | September 20, 2024 |
3. The Notes represent legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the same may be limited by the effect of bankruptcy, insolvency, receivership, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States.
4. The Guarantees represent legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, except as the same may be limited by the effect of bankruptcy, insolvency, receivership, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and equitable principles of general applicability (regardless of whether enforceability is considered in a proceeding in equity or at law) and except further as enforcement thereof may be limited by any governmental authority that limits, delays or prohibits the making of payments outside the United States.
We consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K of the Company filed with the Commission on the date hereof and thereby incorporated by reference into the Registration Statement and to the reference to us under the heading “Validity of the Securities” in the Prospectus Supplement. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
| Yours very truly, |
| /s/ Faegre Drinker Biddle & Reath LLP |
| FAEGRE DRINKER BIDDLE & REATH LLP |
ANNEX I
TO OPINION LETTER
In rendering the accompanying opinion letter, we wish to advise you of the following additional qualifications to which such opinion letter is subject:
(a) We have relied, as to certain relevant facts, upon representations made by the Opinion Parties in the Underwriting Agreement, the Indenture and the Notes (collectively, the “Transaction Documents”), upon the assumptions set forth herein, and upon certificates of, and information provided by, public officials and officers and employees of the Opinion Parties reasonably believed by us to be appropriate sources of information, as to the accuracy of such factual matters, in each case without independent verification thereof or other investigation.
(b) Our opinion letter is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware (the “Covered Laws”), and we express no opinion as to the effect on the matters covered by our opinions of any other law.
(c) We express no opinion as to whether, or to the extent of which, the laws of any particular jurisdiction apply to the subject matter hereof, including without limitation the enforceability of the governing law provisions contained in the Transaction Documents, except to the extent such provision would be enforceable based on Section 5-1401 and 5-1402 of the General Obligations Law of the State of New York.
(d) We have relied, without investigation, upon the following assumptions: (i) natural persons who are involved on behalf of the Opinion Parties have sufficient legal capacity to enter into and perform, on behalf of the Opinion Parties, the transaction in question and to carry out their role in the transaction; (ii) each party to each Transaction Document (other than the Company) has satisfied those legal requirements that are applicable to it to the extent necessary to make such Transaction Document enforceable against it; (iii) each party to agreements or instruments relevant hereto other than the Company has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce such agreements or instruments against the Company or the Guarantor; (iv) each document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document, including electronic signatures, are genuine; (v) all statutes, judicial and administrative decisions, and rules and regulations of governmental agencies, constituting the Covered Laws, are publicly available to lawyers practicing in the jurisdictions the laws of which are addressed by this opinion letter (the “Opining Jurisdictions”); (vi) all relevant statutes, rules, regulations or agency actions are constitutional and valid unless a reported decision in the Opining Jurisdictions has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity; (vii) there has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence; (viii) the conduct of the parties to or having rights under any instrument or agreement relevant hereto has complied with any requirement of good faith, fair dealing and conscionability; (ix) there are no agreements or understandings among the parties, written or oral, and there is
Annex I-1
no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement or qualify the agreements or instruments relevant hereto; (x) the Guarantor is duly incorporated, validly existing and in good standing under the laws of the State of Connecticut; (xi) the Guarantor has the power and authority to execute and deliver the Transaction Documents to which it is a party, to perform its obligations thereunder and to consummate the transactions contemplated thereby; (xii) the execution and delivery by the Guarantor of the Transaction Documents to which it is a party, the performance by the Guarantor of its obligations thereunder and the consummation by the Guarantor of the transactions contemplated thereby have been properly authorized by all necessary corporate action on the part of the Guarantor; and (xiii) the Transaction Documents to which the Guarantor is a party have been duly executed and delivered by the Guarantor. We note that you have, to the extent you deemed advisable, received opinions with respect to certain of the foregoing matters from other counsel for the Guarantor.
(e) Without limiting any other qualifications set forth herein, the opinions expressed in the accompanying opinion letter regarding the enforceability of certain Transaction Documents are subject to the effect of generally applicable laws that (i) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct or to the extent such provisions are contrary to public policy; (ii) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs; (iii) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver; (iv) limit the availability of a remedy under certain circumstances where another remedy has been elected; (v) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; (vi) may permit a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or it is important under the circumstances to the aggrieved party that performance occur by the date stated in the contract; (vii) limit the enforceability of provisions of instruments or agreements that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness; (viii) may limit the enforceability of provisions for the payment of premiums upon mandatory prepayment to the extent any such payment constitutes, or is deemed to constitute, a penalty or forfeiture; (ix) may require mitigation of damages; or (x) provide a time limitation after which rights may not be enforced (i.e., statutes of limitation).
(f) We express no opinion as to the enforceability or effect in any Transaction Document of (i) any usury, fraudulent transfer, fraudulent conveyance or voidable transactions “savings” provision; (ii) any agreement to submit to the jurisdiction of any particular court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction) (except to the extent such agreement would be enforceable based on Section 5-1402 of the General Obligations Law of the State of New York), any provision
Annex I-2
restricting access to courts (including without limitation agreements to arbitrate disputes), any waivers of the right to jury trial, any waivers of service of process requirements that would otherwise be applicable, any provision relating to evidentiary standards, any agreement that a judgment rendered by a court in one jurisdiction may be enforced in another jurisdiction, or any provision otherwise affecting the jurisdiction or venue of courts; (iii) any provision waiving or otherwise modifying legal, statutory or equitable defenses or other procedural, judicial or substantive rights; (iv) any provision that authorizes one party to act as attorney-in-fact for another party; (v) any provision that provides for set-off or similar rights; (vi) any provision that imposes increased interest rates or late payment charges upon overdraft, delinquency in payment or default, or provides for the compounding of interest or the payment of interest on interest; or (vii) any provision that provides for the payment of premiums or liquidated damages (whether or not denominated as such).
(g) We hereby advise you that (i) in the absence of an effective waiver or consent, a guarantor or other accommodation party may be discharged from its guaranty, accommodation security or other support to the extent the supported obligations are modified or other action or inaction by a creditor increases the scope of the accommodation party’s risk or otherwise detrimentally affects its interests (such as by impairing the value of collateral securing the supported obligations, negligently administering the supported obligations, or releasing the borrower or another guarantor or co-accommodation party); and (ii) a guarantor or other accommodation party may have the right to revoke its guaranty, accommodation security or other support with respect to supported obligations incurred after the revocation, notwithstanding the absence of an express right of revocation in the documents providing for support.
(h) The opinions herein expressed are limited to the specific issues addressed and to facts and laws existing on the date hereof. In rendering these opinions, we do not undertake to advise you with respect to any other matter or of any change in such laws or in the interpretation thereof, or of any change in facts, which may occur after the date hereof.
(i) The opinions expressed herein do not address compliance with fiduciary duty and conflict of interest requirements.
Annex I-3
Exhibit 5.2
BOSTON CONNECTICUT FLORIDA NEW JERSEY NEW YORK PROVIDENCE WASHINGTON, DC
Goodwin Square
225 Asylum Street
Hartford, CT 06103-1212
T: (860) 275-0100 F: (860) 275-0343
September 20, 2024
| To: | Voya Financial, Inc. |
230 Park Avenue
New York, New York 10169
Ladies and Gentlemen:
We have acted as Connecticut counsel to Voya Holdings Inc. (formerly known as Lion Connecticut Holdings, Inc.), a Connecticut corporation (the “Guarantor”), in connection with the purchase by the several underwriters (the “Underwriters”) listed in Schedule I to the Underwriting Agreement dated September 13, 2024 (the “Underwriting Agreement”), among Voya Financial, Inc. (the “Company”), the Guarantor, BofA Securities, Inc., Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC and Morgan Stanley & Co. LLC, as representatives of the Underwriters, of $400,000,000 aggregate principal amount of 5.000% Notes due 2034 (the “Notes”) and the unsecured guarantees of the Guarantor relating to the Notes (the “Guarantees”) issued under an Indenture, dated as of July 13, 2012 (the “Base Indenture”), among the Company (f/k/a ING U.S., Inc.), the Guarantor and U.S. Bank Trust Company, National Association (as successor in interest to U.S. Bank National Association), as trustee (the “Trustee”), as supplemented by the Eighth Supplemental Indenture, dated as of September 20, 2024 (the “Eighth Supplemental Indenture”), among the Company, the Guarantor and the Trustee (the Base Indenture, as supplemented by the Eighth Supplemental Indenture, being herein called the “Indenture”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
In connection with the opinions expressed herein, we have reviewed copies of the following documents:
(i) the Underwriting Agreement;
(ii) the Indenture; and
(iii) the Certificate of the Secretary of the Guarantor as to the certificate of incorporation and bylaws of the Guarantor, the authorizing resolutions of the Guarantor’s board of directors and the incumbency of the officers of the Guarantor signing the Underwriting Agreement and the Guarantees on behalf of the Guarantor (the “Corporate Secretary’s Certificate”).
September 20, 2024
Page 2
We have also made such other investigation as we have considered necessary as the basis for the opinions set forth herein.
In preparing this opinion, we have relied upon the certifications as to factual matters made in the Corporate Secretary’s Certificate and in certificates of the Secretary of the State of the State of Connecticut and we have assumed that all of the same are true, correct and complete and have not undertaken any further inquiry as to the accuracy thereof. We have no knowledge that any of such factual matters are untrue, incomplete or incorrect.
Our opinion in opinion paragraph 1 as to the existence of the Guarantor is based solely upon the certificate dated September 11, 2024, issued by the Office of the Secretary of the State of the State of Connecticut, stating that, as of such date, the Guarantor is in existence in the State of Connecticut.
We have also assumed without any independent inquiry:
(a) that the Guarantor is part of an insurance company holding company system but is not a Connecticut-domiciled insurance company; and
(b) that the Guarantor has not entered into any agreements that modify or amend the terms of the Guarantees.
Based upon the foregoing assumptions, and subject to the limitations, qualifications and exceptions hereinafter set forth, we are of the opinion that:
1. The Guarantor is a corporation in existence under the laws of the State of Connecticut.
2. The Guarantor has all requisite power and authority to execute and deliver each of the Underwriting Agreement and the Eighth Supplemental Indenture, and to perform its obligations thereunder and under the Guarantees.
3. The execution and delivery by the Guarantor of the Underwriting Agreement and the Eighth Supplemental Indenture, the performance by the Guarantor of its obligations thereunder and the consummation by the Guarantor of the transactions contemplated thereby have been properly authorized by all necessary corporate action on the part of the Guarantor.
4. The Underwriting Agreement and the Eighth Supplemental Indenture have been duly executed and delivered by the Guarantor.
September 20, 2024
Page 3
Our opinions set forth above are subject to the following qualifications:
A. We express no opinion herein as to the securities laws of any jurisdiction.
B. We express no opinion herein as to what governmental consents, authorizations or approvals, if any, may be required in order for the Guarantor to cause any of its subsidiaries to make available, or cause to be made available, to the Guarantor any funds that may be necessary for the Guarantor to meet its obligations under the Guarantees.
C. The foregoing opinions are limited to matters involving the laws of the State of Connecticut, and we do not express any opinion with respect to the laws of any other state or jurisdiction.
We consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission (the “Commission”) on the date hereof and thereby incorporated by reference into the Registration Statement and to the reference to us under the heading “Validity of the Securities” in the Prospectus Supplement filed by you with the Commission which is a part of the Registration Statement on Form S-3 (File No. 333-262924). In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended or the rules or regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Day Pitney LLP |
BWF/NTS/JM