MONDELĒZ INTERNATIONAL, INC. (the “Company”) Debt Securities TERMS AGREEMENT
Exhibit 1.3
Execution Version
MONDELĒZ INTERNATIONAL, INC.
(the “Company”)
Debt Securities
February 25, 2015
To: The Representatives of the Underwriters identified herein
Ladies and Gentlemen:
The undersigned agrees to sell to the several Underwriters named in Schedule A hereto for their respective accounts, on and subject to the terms and conditions of the Amended and Restated Underwriting Agreement relating to debt securities covered by the Company’s registration statement on Form S-3 (File No. 333-194330) (incorporated by reference to Exhibit 1.1 to the Company’s registration statement on Form S-3 (File No. 333-172488) filed on February 28, 2011) (the “Underwriting Agreement”), the following securities (the “Offered Securities”) on the following terms:
OFFERED SECURITIES
Title:
3.875% Notes due 2045 (the “Notes”).
Principal Amount:
£450,000,000 aggregate principal amount.
Interest:
Interest on the Notes is payable annually on March 6 of each year, commencing March 6, 2016 until the Maturity Date. The Notes will bear interest at the rate of 3.875% per annum.
Interest on the Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or March 6, 2015 if no interest has been paid on the Notes), to but excluding the next scheduled interest payment date, i.e. the Actual/Actual (ICMA) payment convention as defined in the rulebook of the International Capital Market Association.
Interest on the Notes will be paid to the persons in whose names such Notes are registered at the close of business the business day before the relevant interest payment date (or to the applicable depositary, as the case may be).
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Maturity Date:
March 6, 2045.
Currency of Denomination:
The Notes will be denominated in sterling (£).
Currency of Payment:
All payments of interest and principal, including payments made upon any redemption of the Notes, will be made in sterling (£).
Under certain circumstances, the Notes will be redenominated in euro or payments in respect of the Notes will be made in U.S. dollars, as described under the caption “Description of Notes—Issuance in Sterling” in the Prospectus Supplement. Any payments in respect of the Notes so made in U.S. dollars will not constitute an event of default under the terms of the Notes.
Form and Denomination:
The Notes will be issued only in registered form and deposited in global form with a common depositary for Clearstream Banking, société anonyme (“Clearstream”) and Euroclear Bank S.A./N.V. (“Euroclear”) in minimum denominations of £100,000 in principal amount and integral multiples of £1,000 in excess thereof.
Change of Control:
Upon the occurrence of a Change of Control Triggering Event (as defined in the Prospectus Supplement), the Company will be required to make an offer to purchase the Notes at a price equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest to the date of repurchase as and to the extent set forth in the Prospectus Supplement under the caption “Description of Notes—Change of Control.”
Optional Redemption:
The Company may redeem the Notes, in whole at any time or in part from time to time, as described under the caption “Description of Notes—Optional Redemption” in the Prospectus Supplement.
Redemption for Tax Reasons:
The Company may redeem all, but not part, of the Notes upon the occurrence of specified tax events described under the caption “Description of Notes—Redemption for Tax Reasons” in the Prospectus Supplement.
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Conversion Provisions:
None.
Sinking Fund:
None.
Listing:
New York Stock Exchange.
Payment of Additional Amounts:
In addition, the Company shall pay Additional Amounts to holders as and to the extent set forth under the caption “Description of Notes—Payment of Additional Amounts” in the Prospectus Supplement.
The Company undertakes that, to the extent permitted by law, the Company will maintain a paying agent that will not require withholding or deduction of tax pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced to conform to, such European Council Directive.
Purchase Price:
99.217% of the principal amount, plus accrued interest, if any, from March 6, 2015.
Expected Reoffering Price:
99.717% of the principal amount, plus accrued interest, if any, from March 6, 2015.
OTHER MATTERS
Closing:
On or before 2:00 p.m., Brussels time, on March 6, 2015, whereby payment to the Company is effected by the common depositary for Clearstream and Euroclear on behalf of the Underwriters against delivery of the Notes, which will be delivered to the nominated account for and on behalf of the Underwriters through Clearstream and Euroclear.
Settlement and Trading:
Registered form only via Clearstream or Euroclear.
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Names and Addresses of the Representatives and Lead Underwriters:
Credit Suisse Securities (Europe) Limited
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deutsche Bank AG, London Branch
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The Royal Bank of Scotland plc
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Société Générale
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The respective principal amounts of the Offered Securities to be severally purchased by each of the Underwriters are set forth opposite their names in Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein by reference, except that:
(1) Section 2(x) of the Underwriting Agreement is hereby replaced in its entirety as follows:
“(x) Except as otherwise disclosed in the Pricing Prospectus and the Prospectus, (i) to the knowledge of the Company after due inquiry, neither the Company nor any of its subsidiaries nor any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons either (A) of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (B) the U.K. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (the “Bribery Act”) and (ii) the Company, its subsidiaries and, to the knowledge of the Company after due inquiry, its affiliates have conducted their businesses in material compliance with the FCPA and the Bribery Act and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.”
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(2) Section 2(z) of the Underwriting Agreement is hereby replaced in its entirety as follows:
“(z) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is an individual or entity (“Person”) currently subject to or target of any sanctions enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union and Her Majesty’s Treasury (“HMT”) (collectively, “Sanctions”); nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject of comprehensive Sanctions; and the Company will not directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other Person, (i) for the purpose of funding any activities of or business with any Person that, at the time of such funding, is the subject of comprehensive Sanctions, (ii) for the purpose of funding any activities of or business (except as permitted by an agency or department of the U.S. government, pursuant to license or otherwise) in any country or territory that is the subject of comprehensive Sanctions or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.”
(3) Section 5(d) of the Underwriting Agreement is hereby replaced in its entirety as follows:
“(d) The Representatives shall have received an opinion, dated the Closing Date, from: (i) Hunton & ▇▇▇▇▇▇▇▇ LLP, Virginia legal counsel to the Company, with respect to the matters set forth in Exhibit A; and (ii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York legal counsel to the Company, with respect to the matters set forth in Exhibit B.”
(4) Each of Section 6(a) and Section 6(b) of the Underwriting Agreement is hereby amended to replace “directors and officers” in the first sentence thereof with “directors, officers, employees, agents and affiliates,” and Section 6(a) of the Underwriting Agreement is further amended to replace “Underwriter” the fourth and fifth time it appears in such section with “indemnified person.”
(5) Notwithstanding anything in Section 4(h) of the Underwriting Agreement to the contrary, the Underwriters shall pay all expenses (including reasonable fees and disbursements of their counsel) incurred in connection with the qualification of the Offered Securities for sale and any determination of their eligibility for investment under the laws of such jurisdictions as the Representatives reasonably designate.
In addition to the representations and warranties contained in Section 2 of the Underwriting Agreement, the Company, as of the date hereof and as of the Closing Date, represents and warrants to, and agrees with, each Underwriter that the interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration
5
Statement, the Pricing Prospectus and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
All references to “Kraft Foods Inc.” in the Underwriting Agreement shall be deemed to refer to Mondelēz International, Inc.
For purposes of the Underwriting Agreement, the “Applicable Time” shall be 5:30 p.m. (London time) on February 25, 2015.
The Offered Securities will be made available for checking at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, prior to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only information furnished to the Company by the Underwriters for use in the Prospectus consists of the following information in the Prospectus: the information contained in the seventh, eighth, ninth and tenth paragraphs under the caption “Underwriting” in the Prospectus Supplement.
The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Markets Association Agreement Among Managers Version 1 / New York Law Schedule (the “Agreement Among Managers”) as amended in the manner set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters, “Lead Manager” means the Representatives, “Settlement Lead Manager” means Credit Suisse Securities (Europe) Limited, “Stabilising Manager” means Credit Suisse Securities (Europe) Limited and “Subscription Agreement” means the Underwriting Agreement. Clause 3 of the Agreement Among Managers shall be deleted in its entirety and replaced with Section 7 of the Underwriting Agreement.
(Remainder of page intentionally left blank)
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||
| MONDELĒZ INTERNATIONAL, INC. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Title: | Senior Vice President and Treasurer | |
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE SECURITIES (EUROPE) LIMITED
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Authorised Attorney |
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Title: | Managing Director |
DEUTSCHE BANK AG, LONDON BRANCH
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Managing Director |
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: | Managing Director |
THE ROYAL BANK OF SCOTLAND PLC
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Title: | Authorised Signatory |
SOCIÉTÉ GÉNÉRALE
| By: | /s/ ▇▇▇▇▇▇▇▇ Salorlo | |
| Name: | ▇▇▇▇▇▇▇▇ Salorlo | |
| Title: | Global Head of Debt Capital Markets |
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
| BARCLAYS BANK PLC | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Title: | Managing Director | |
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
| BNP PARIBAS | ||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Authorised Signatory | |||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ | |||
| Title: | Duly Authorised Signatory | |||
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
| HSBC BANK PLC | ||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Director Transaction Management Group EMEA Debt Capital Markets | |||
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
| BANCA IMI S.P.A. | ||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | Head of Debt Capital Markets | |||
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
COMMERZBANK AKTIENGESELLSCHAFT
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | Director Authorised Signatory |
| By: | /s/ ▇▇▇▇▇ Schikaneder | |
| Name: | ▇▇▇▇▇ Schikaneder | |
| Title: | Managing Director Authorised Signatory | |
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
| MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC | ||
| By: | /s/ An-▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ | |
| Name: | An-▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ | |
| Title: | Authorised Signatory | |
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
The foregoing Terms Agreement is hereby
confirmed and accepted as of the date first above
written.
| MIZUHO INTERNATIONAL PLC
| ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Title: | Managing Director | |
Acting on behalf of itself as an Underwriter.
SIGNATURE PAGE TO TERMS AGREEMENT
SCHEDULE A
| Underwriters |
Principal Amount of Notes | |||
| Credit Suisse Securities (Europe) Limited |
£ | 51,429,000 | ||
| Deutsche Bank AG, London Branch |
51,429,000 | |||
| The Royal Bank of Scotland plc |
51,429,000 | |||
| Société Générale |
51,429,000 | |||
| Barclays Bank PLC |
51,428,000 | |||
| BNP Paribas |
51,428,000 | |||
| HSBC Bank plc |
51,428,000 | |||
| Banca IMI S.p.A. |
22,500,000 | |||
| Commerzbank Aktiengesellschaft |
22,500,000 | |||
| Mitsubishi UFJ Securities International plc |
22,500,000 | |||
| Mizuho International plc |
22,500,000 | |||
|
|
|
|||
| Total |
£ | 450,000,000 | ||
|
|
|
|||
EXHIBIT A
Form of Opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP
1. The Company has been duly incorporated and is validly existing and in good standing under the laws of the Commonwealth of Virginia, and has all requisite corporate power and authority to own or hold its properties and to conduct the businesses in which it is engaged as described in the Prospectus.
2. No filing with, notice to, or consent, approval, authorization, registration, qualification or order of any governmental agency or body or official of the Commonwealth of Virginia or, to our knowledge, any court thereof, is required to be made or obtained in connection with the execution, delivery and performance of the Terms Agreement or the consummation of the transactions contemplated by the Terms Agreement, except as may be required under the blue sky laws of the Commonwealth of Virginia (as to which we express no opinion).
3. The Terms Agreement, the Indenture and the Notes have been duly authorized, executed and delivered by the Company.
4. None of the execution and delivery by the Company of the Terms Agreement, the consummation by the Company of the transactions contemplated by the Terms Agreement and the Indenture, or the issuance and sale of the Notes or compliance with the terms and provisions thereof, will (a) violate the Articles of Incorporation or the Bylaws or (b) violate any law, rule, regulation or order, known to us to be applicable to the Company, of any Virginia court or governmental agency under the laws of the Commonwealth of Virginia.
EXHIBIT B
Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
1. Each subsidiary of the Company listed on Annex A (each, a “Significant Subsidiary”) is a validly existing corporation or limited liability company, as the case may be, in good standing under the laws of the State of Delaware with the requisite corporate or other power and authority to own its properties and conduct its business as described in the Prospectus.
2. The Indenture constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.
3. The Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
4. The execution and delivery by the Company of the Note Documents to which it is a party, the performance of its obligations thereunder, and the issuance by the Company of the Notes to the Underwriters:
(i) do not and will not result in a breach of or default under any agreement to which the Company is a party that is identified to us in a certificate of the Company as being material to the Company and its subsidiaries taken as a whole, which agreements are listed on Annex B; and
(ii) do not and will not violate, or require any filing with or approval of any governmental authority or regulatory body of the State of New York or the United States of America under, any law or regulation currently in effect of the State of New York or the United States of America applicable to the Company that, in our experience, is generally applicable to transactions in the nature of those contemplated by the Underwriting Agreement, except for such filings or approvals as already have been made or obtained under the Securities Act of 1933, as amended (the “Securities Act”).
5. Insofar as the statements in the Pricing Disclosure Package and the Prospectus under the caption “Description of Notes” and “Description of Debt Securities” purport to describe specific provisions of the Notes or the Indenture, such statements present in all material respects an accurate summary of such provisions.
6. Insofar as the statements in the Pricing Disclosure Package and the Prospectus under the caption “Material U.S. Federal Income Tax Considerations,” purport to describe specific provisions of the Internal Revenue Code of 1986, as amended, or the rules and regulations thereunder, or legal conclusions with respect thereto, such statements present in all material respects an accurate summary of such provisions or conclusions.
7. The Company is not and, after giving effect to the sale of the Notes and the use of proceeds therefrom as described in the Prospectus, will not be an “investment company” that is required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”). For purposes of this paragraph 7, the term “investment company” has the meanings ascribed to such term in the Investment Company Act.
8. Except for the financial statements and schedules, statistical information that is purported to have been provided on the authority of an expert or public official and other information of an accounting or financial nature and the Statement of Eligibility on Form T-1 of the Trustee included or incorporated by reference therein, as to which we express no opinion or belief, no facts have come to our attention that led us to believe: (a) that the Registration Statement, at the time it became effective, or the Prospectus, as of the date of the Final Prospectus Supplement, were not appropriately responsive in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the applicable rules and regulations of the Commission thereunder; or (b)(i) that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein, or necessary to make the statements therein not misleading, (ii) that the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, as of its date or as of the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.